Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Marijuana Defense Lawyer from Bauer, Crider, and Parry, Mike Kenny. Mike, how are you doing today?

Mike Kenny: I’m doing well. How are you?

BP: Good. Well in the last podcast, we kind of just had a quick one, a drug crimes overview. You talked about the three different categories of crimes, misdemeanor, felony, and trafficking. Today we’re going to be talking about a pretty interesting subject. Marijuana. Cannabis. Pot. Weed. Let’s start there.

MK: All right. Yeah, I think marijuana is an interesting subject. Probably when I was going to law school, I never would have envisioned such a movement that I have seen where different states have actually been successful in having recreational pot use or marijuana use. It’s interesting to me. In this state, there have been attempts to do that, but still, it’s illegal to possess marijuana. It’s illegal to possess marijuana for any use—whether it be medical use or for private use. The possession of marijuana comes in three groupings. The first grouping is simple possession of marijuana, where you’re in possession of marijuana, or a pot plant, or some item that is under a certain weight.

BP: Does that also include certain paraphernalia? A pipe with residue on it, or…

MK: It could. It really depends on the facts and the prosecuting authority. But possession of paraphernalia is technically not a drug in itself. Paraphernalia means a drug used to carry, store, conceal, ingest, or inhale. For instance, a marijuana pipe would be used to inhale or ingest marijuana. So that in and of itself is a misdemeanor of the first degree, and that’s punishable the same way but does not carry with it a driver’s license suspension. So that’s pretty significant with people who are concerned, especially people who may have some significant prior criminal history. Now, if there’s enough residue inside of that pipe—and I’ve seen it happen before, where people are charged with both possession of marijuana and paraphernalia based upon a little oil that’s found, or maybe a little bit of burnt residue that’s found inside the pipe. The prosecuting authority can certainly try to convict somebody based on that if they have it, but the idea is having enough to test it and having enough to show that it actually is something that can be identified as marijuana.

BP: So you said there are three categories, possession…

MK: The next one is felony possession. Felony possession is the possession of any amount of marijuana that’s greater than 20 grams. That would be a more significant amount—it’s a third-degree felony punishable by up to five years in prison for a first-time offense. It’s usually not that significant of a crime; it’s usually a probationary type of sentence. Finally, there’s the trafficking amount of marijuana. Marijuana is unique. It requires a very large amount to be considered trafficking by possession. But the trafficking statute says that any person who is in excess of 25 pounds of cannabis or 300 or more pounds of cannabis plants commits a felony in the first degree known as trafficking. In excess of 25 pounds but less than 2,000 pounds—that’s punishable by three years in the Department of Corrections and a $25,000 fine. If it’s 2,000 pounds but less than 10,000 pounds, or if it’s 2,000 or more cannabis plants, it’s a seven-year minimum mandatory prison sentence and $50,000 fine. And the last category, if it’s 100,000 pounds or more, or is 10,000 or more cannabis plants, the person will be sentenced to a mandatory minimum imprisonment of 15 years in the Department of Corrections and a $200,000 fine. And those are minimum mandatory prison sentences. What that means is that the person serves 100% of that sentence. They don’t get out any earlier than 15 years, for instance, if they are sentenced to that. And the judge has no discretion. If a person is convicted of that charge, the judge must sentence that person subject to a very few exceptions.

BP: Okay. And I’m not trying to encourage our audience by this question, but so you’re saying that if you have 24 pounds—

MK: Then it wouldn’t be trafficking. And that seems like a lot. I mean, marijuana is one of those few drugs that you need a much larger quantity to get into that ultra significant penalty phase, that trafficking amount. For instance, a drug like oxycodone is 4 grams. So we’re talking 4 grams opposed to 28 pounds. A lot of that, I think, is based in large part because, with the marijuana plant in general, there’s a lot of plant materials to that—that thing can get heavy pretty quickly. So that might be part of the reason why there needs to be such a significant amount.

BP: And so, just like in the last podcast we talked about, whether you get a felony or a trafficking, even just possession, the point would be to hire a criminal defense attorney early, right?

MK: Sure, because there are a lot of reasons why you wouldn’t want any kind of conviction, whether it be a misdemeanor or a felony. One of the things that happens is, for every one of these, you’re going to get a driver’s license suspension. And in the state of Florida, we don’t have the same public transportation that they would have in the state of New York. It’s very difficult to maintain a living without the ability to drive to work, drive to school, drive to the store to get what you need like food. So it’s particularly burdensome. Also, to prove possession is unique. A lot of times these possession cases come up involving more than one person, meaning usually it’s not just one person who is stopped. Usually it’s in a group of folks. And a lot of legal issues are raised, because it’s called constructive possession. This comes up when there’s more than one person who could have exercised dominion or control over the substance. It’s very difficult, in my mind, for the prosecutor to prove constructive possession if they don’t have the necessary statements from witnesses or if they don’t have the necessary statements from your client. Some people might think that all is lost and want to just go in and give up, but there’s a lot more to it than just being caught in a car with drugs.

BP: Right. Well, Mike, anything else on marijuana?

MK: No, sir.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast with Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm.