As of the writing of this blog, there’s no definitive Florida court case that allows or disallows the possession of cannabis pursuant to a valid out of state prescription. Many states are attempting to amend their laws to allow for the possession of weed, yet such amendments involve simple possession, and the focus here is on medical necessity cases. We all understand that when travelling to Amsterdam, one can legally purchase weed, cocaine, hydrocodone, but few are dumb enough to think that, just because it was legal to possess in Amsterdam, that it can then be brought home to Florida. It seems as though drugs possessed pursuant to a valid prescription would present a different case.
Even though the Florida courts have not encountered facts involving an arrest for weed possession via a California prescription, the Florida statutes do provide some guidance, it’s called the prescription defense. Florida statutes allow a person to legally possess a legend drug or a controlled substance when the drug was obtained pursuant to a valid prescription (Florida Statute Section 499.03 & 893.13). 99 out of 100 prescription defense cases involve trafficking in hydrocodone or oxycodone, so it’s new territory using this defense for a weed charge.
To use the prescription defense the drug–in our case weed / cannabis / marijuana–must be a “controlled substance” or a “legend drug”. First, a legend drug is defined in 499.003(8), whereby the drug is “required by federal or state law to be dispensed only on a prescription.” Does cannabis qualify as a legend drug? Under Federal law, probably not, because federal law does not allow cannabis to be dispensed by prescription. But under California law, cannabis is a legend drug, as it may be dispensed via prescription.
The prescription defense may also be used if cannabis is considered a ‘controlled substance’. A controlled substance is defined under section 893. 04(1) of the florida statutes as “any substance named or described in Schedules I-V of s. 893.03”. Bingo. Cannabis is a Schedule I substance, so it appears as though weed may qualify for a prescription drug offense.
Where do we draw the line drawn between what is legal in one state versus another? I can drive my car registered in Florida in any of our great 50 states, without being harassed by the fact that the car does not conform to each particular state’s rules and regulations (for example, some states require a front license plate, Florida does not). I can practice law in the State of Florida, but not in California. Out of respect to other states, including California, Florida should allow visitors to continue their medical treatment while vacationing here. Furthermore, the prescription defense should also help defend a medicinal marijuana user from a possession of cannabis charge. An argument could be made under two United States Constitution provisions, the Full Faith and Credit Clause, and the Privileges and Immunities Clause. Now, whole books can be written about this stuff, so my one sentence summary here is just that, when California grants its citizens immunity from prosecution on a marijuana charge, such immunity should be honored by other states. Under the Privileges and Immunites Clause, the problem becomes that, by not permitting California citizens to travel with their prescription drugs, Florida has, in effect, denied the citizen his or her right to travel from state to state. That being said, Florida law enforcement will not honor out of state prescriptions for marijuana. As the saying goes, you may be the rap, but you can’t beat the ride to jail….Fortunately, should this issue ever come up, I know a great lawyer.