Criminal Defense
Since 1993
Since 1993
Medical Marijuana: The Constitutional Showdown (State vs. Feds)
By: John Guidry
You never know, medical marijuana may one day become a reality here in Florida.
Of course, that would mean quite a pay cut for criminal defense attorneys like me. Possession of marijuana arrests are popular here in Orlando, so the police would have to find something else to do with their time. (Somehow, I think they’ll manage; “Crime Inc.” always finds a way to increase revenues).
But even if I lose business, I’ll bite the bullet because it’s the right thing to do.
Caught in the crossfire between State and Federal law?
Even with a medical card, you can still face legal hurdles. Call John today at (407) 423-1117.
Constitutional Law 101: Who Has the Power?
If Florida passes a medical marijuana law, our state law will be in direct conflict with Federal law. Federal law makes it clear that cannabis possession is illegal (except for very narrow research purposes).
This highlights an interesting issue in Constitutional Law: What are the rights of the States vs. the Federal Government?
The Theory: “We, the People” gave our federal government only certain powers. All other powers were supposed to be retained by the States (The 10th Amendment).
The Reality: The Federal government has grabbed more power than originally granted, and a prime example is the war on drugs.
Doctors vs. The DEA
The conflict comes down to two competing powers:
- State Power: The power to regulate medicine. (This is why you don’t see “Federally” licensed doctors; states license doctors).
- Federal Power: The power to regulate interstate commerce (which they use to ban drugs).
Included within the State’s right to regulate medicine is the right to decide what treatments are valid. If a State decides marijuana is a valid medicine, but the Federal government says a doctor can’t prescribe it, we have a problem.
The “Wink and Nod” Policy Currently, the Feds have decided not to change their laws, but simply not to prosecute patients who are complying with state law. It is a fragile truce.
John’s 2026 Update: It’s Legal, But You Still Have Risks
Note: Florida voters passed Amendment 2 in 2016, finally making medical marijuana legal.
While you can now walk into a dispensary in Orlando and buy cannabis with a card, the Constitutional conflict I wrote about above is still causing headaches for my clients.
1. The “Gun” Problem This is the biggest trap. Federal law prohibits any “unlawful user” of controlled substances from owning a firearm. Because marijuana is still federally illegal, the ATF says you cannot own a gun if you have a medical marijuana card.
- If you lie on the federal background check form (Form 4473) to buy a gun, you are committing a federal felony.
2. The “Federal Land” Trap Your Florida card works in Orlando, but it stops working the moment you step onto Federal Property.
- Airports: Technically federal jurisdiction (TSA).
- Military Bases: Patrick Space Force Base, etc.
- National Parks: The Everglades or Canaveral National Seashore. If you are caught with your “legal” medicine in these places, you can be charged under federal law.
3. Employment & DUI
- Jobs: Florida law does not protect you from being fired for failing a drug test, even if you have a card.
- DUI: You can still be arrested for DUI if the police believe you are “impaired” by your medication while driving.
The Bottom Line: We won the battle for medical marijuana in Florida, but the war between State and Federal law continues. Until the Federal government reschedules cannabis, you are walking a legal tightrope.
Call me at (407) 423-1117. Let’s keep you on the safe side of the line.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.