Concentrated marijuana, or THC oil, is still considered to be a felony possession of a controlled substance in Florida. At my law practice in St. Petersburg, I have witnessed an influx of THC oil cases over the last few years. Most of these cases involve young people who were unaware that marijuana oil is a serious crime. Likewise, most involve a single cartridge of THC oil and a vape pen. The fact that even a trace amount of THC oil left in the vape pen will result in a felony arrest demonstrates how far behind Florida’s marijuana laws are compared to the rest of the country.
When I first began practicing law in 2000, many of my felony drug cases were either ecstasy or cocaine possession. In the mid-2000s, I saw an increase in heroin cases. Shortly after, pills came on the scene and became an epidemic. Over the last couple of years, marijuana and THC oil cases have become the most common felony drug possession cases that I handle. The reason for this change is that THC oil is legal now in Florida for medical purposes. It is extremely easy to get a medical marijuana card. In fact, I have never had a client who applied for a medical marijuana card denied one. Also contributing to the rise of marijuana cases is the fact that so many other states have legalized it for recreational purposes. Thus, THC oil has been pouring into Florida by those who purchase it legally in another state and simply ship or carry it home.
Lastly, there has been a radical shift in the perception of the use of marijuana. As medical marijuana becomes more common, many people believe that using THC oil is not that big of a deal. Unfortunately, the laws in Florida have not caught up to societal perceptions and too many people have to learn the hard way that it is still a serious crime. As a criminal defense attorney located in Pinellas County, it is frustrating to see so many young people arrested for felony possession of THC oil when it would have been legal had they simply obtained a medical marijuana card.
What Will the Effect of a THC Oil Charge Have on My Criminal Record?
While marijuana and THC oil charges carry significant consequences, my clients are usually most concerned with how this will affect their record. The good news is that I have yet to have a single client who was arrested for THC oil possession be convicted. Sometimes we are able to get the charge dropped. But, if you are charged, there are also two mechanisms to avoid a conviction. One in a program called pre-trial intervention (PTI), which is for first-time offenders. Upon successful completion of PTI, your charges will be dismissed. The second option is a withhold of adjudication, which means no conviction. With either option, you will not have to state on job applications or rental applications that you have been convicted of a felony. For almost all jobs, not being a convicted felon is all the employer cares about.
What Are the Penalties for THC Oil Possession?
Under Florida Statute 893.03, THC oil is a schedule 1 controlled substance. Under Florida Statute 893.13, possession of THC oil is a third-degree felony. This means it is punishable by a maximum of five years in prison and a fine of up to $5,000.
However, the penalties for THC oil possession will normally involve either a diversion program such as PTI, probation and a substance abuse evaluation and treatment. Jail is rare unless the defendant has a bad prior record or possessed too much to be considered personal use. The ridiculous aspect of these charges is that many of my clients obtain a medical marijuana card shortly after their arrest and are actually permitted by law to then use the THC oil while they are on PTI or probation. This highlights how antiquated Florida law is when it comes to these types of cases.
Can I Have My Driver’s License Revoked for THC Oil Possession?
Under Florida Statute 322.055, if you are convicted of possession of any cannabis or marijuana concentrate, you are required to have your driver’s license suspended for a period of 1 year by the Florida Department of Highway Safety and Motor Vehicles. Fortunately, I have been able to avoid convictions in every one of my THC oil cases thus far, so none of my clients have had to lose their license.
Are There Defenses to THC Oil Charges?
There are numerous defenses to THC possession charges if presented correctly.
Constructive possession– If the THC oil was found in a place where more than one person had access, it is a complete defense. I encounter this scenario most frequently when the controlled substance is found in a car that is not registered to the person who was charged. I also see this scenario when the vape pen is found in a common area such as a car center console. The state has the burden to prove that you knew of the THC oil and had the ability to exercise control over it.
Illegal Search– Generally, law enforcement finds a vape pen containing THC oil after stopping the car for some traffic offense. Commonly, the officer approaches the car, claims to smell marijuana and then searches the car and then finds the vape pen. If this odor allegation can be rebutted or contradicted in some manner, then the probable cause used to search the car can be attacked.
Prescription Defense– Sometimes, a person with a valid prescription leaves a vape pen in your car without your knowledge. This has actually happened to me, although I found the pen and got it out of my car before anything bad happened. But, the odds of the small vape pen falling out of someone’s pocket are high. If you were charged with possession of a controlled substance for someone else’s lawfully prescribed medicine, you have a complete defense to the charge.
Criminal Defense Lawyer for THC Oil and Possession of a Controlled Substance Charges in Pinellas County
I have been practicing law for the past 20 years primarily in Pinellas County. Law enforcement does not give you any breaks at the scene if they find THC oil in your possession. But, I am often able to find defenses or mitigate the effects of the charge. Most of my clients want to protect their criminal record and avoid jail. While there are never any guarantees, thus far, my success rate in achieving those goals is 100%. If you or your child has been arrested for THC oil after being found with a vape pen and cartridges of THC oil, I highly recommend that you speak to a criminal defense attorney. There is simply too much to risk on these charges if you do not get ahead of them.