At the intersection of illegal cannabis, legal hemp, and medical marijuana Florida is in a haze of legal confusion.
What is Legal?
In 2016, 71 percent of Floridians voted to legalize medical marijuana. The 2017 bill signed into law by then-governor Scott says “a licensed medical marijuana treatment center shall cultivate, process, transport and dispense marijuana for medical use.”
To qualify a patient has to first prove a potentially qualifying condition to receive cannabis, which a physician is required to corroborate. Some of these qualifying conditions include glaucoma, epilepsy, PTSD, cancer or chronic pain. Once an application is approved by the state, a patient can fill the order recommended by the physician through an ID card at a licensed dispensary.
On July 1, 2019 a Senate Bill 1020 took effect as signed into law by Governor DeSantis. The Bill regulates hemp and hemp extract in Florida, which includes state regulation of the popular hemp derivative, cannabidiol (CBD).
“Hemp extract” is defined as a substance or compound intended for ingestion that is derived from or contains hemp and does not contain any other controlled substances. This includes CBD. Importantly, no one can sell or distribute CBD in Florida without a certificate of analysis prepared by an independent testing laboratory that states that the hemp extract is the product of a batch tested by the laboratory and that the batch contained a total delta-9-tetrahydrocannabinol (THC) concentration that does not exceed 0.3 percent on a dry-weight basis pursuant to the testing of a random sample of the batch.
What is Illegal?
Cannabis in any form having a total delta-9-tetrahydrocannabinol (THC) concentration that exceeds 0.3 percent on a dry-weight basis continues to be illegal in Florida.
What is the Confusion?
As of this writing, law enforcement agencies throughout the State of Florida and in the Tampa Bay area (including Pinellas and Hillsborough Counties) use a field presumptive test to determine whether or not a substance contains delta-9-tetrahydrocannabinol (THC). The currently used field tests cannot distinguish between legal CBD that contains less than 0.3% THC and illegal cannabis that contains more than 0.3% THC.
Further, as of this writing, there is no DEA licensed testing facility in Florida that has a test that can distinguish between legal CBD and illegal cannabis.
As well, there is no way to distinguish hemp and cannabis based on plain view or plain odor alone. Hemp and cannabis are both derived from the same plant (Cannabis Sativa), they look, feel, and smell the same, and both substances can be smoked in plant, oil, or wax forms. There is no definitive probable cause arrest standard.
What is Florida Law Enforcement Doing?
The Florida Highway Patrol (FHP) recently distributed a memo that orders its Troopers not to make any further custodial arrests for misdemeanor amounts of marijuana. The memo further states that no custodial arrest shall be made for felony amounts of marijuana until the Trooper consults with a “Trooper Legal Advisor.” The memo goes on to state that FHP Troopers cannot rely on the standard plain odor of marijuana to conduct a search. The FHP suggests that Troopers use an “odor plus” standard to initiate a search. The “odor plus” standard is defined by the FHP to include the odor of marijuana plus any of the following:
- Admission of possession of a controlled substance during initial contact OR denial of possession of hemp
- Visual observation – plain view / plain feel of an illegal substance
- Any other illegal activity / conduct
- Conflicting or nonsensical statements by suspect or passenger
- Signs of deceptions, hands shaking, nervousness, avoiding eye contact
- Furtive movements
- Destroying, discarding, or distancing themselves from an object / substance
- Signs of impairment ( driving pattern, bloodshot or watery eyes, slurred speech, delayed reaction/responses)
- A large amount of currency and/or currency bundled, rubber banded or packaged in a manner consistent with illegal narcotics activity
- Masking agents
- Drug Paraphernalia (scales, baggies, or other paraphernalia when combined with other factors on list)
- Weapon/ firearm
- Criminal record if known prior to stop and subsequent search (applies more to the determination of whether material is hemp or cannabis rather than probable cause to search)
- Information / intelligence regarding illicit activity prior to stop and search
The FHP memo goes on to state:
While conducting a traffic slop, you detect the odor of cannabis emanating from the vehicle. Prior to searching, you should ask the subject, “Do you have any marijuana or hemp in the vehicle? ” If the subject answers “No”, then you have reached the threshold to detain and search. If the subject answers “Yes ”, then you need to determine if it is marijuana or hemp. If the subject advises it is marijuana , then you must determine if the marijuana is legally obtained (medical marijuana). If the subject has illegal marijuana, then you may now detain and search.
State Attorney’s Offices across the State have indicated that because of the difficulties distinguishing legal hemp and CBD from illegal cannabis based on plain view or plain odor alone, the lack of a current presumptive field test or laboratory test that can distinguish legal hemp and illegal cannabis, and the issues concerning adequate probable cause determinations that in some Judicial Circuits prosecutions for misdemeanor and felony possession of marijuana cases will be ceased until these issues can be addressed.
Several State Attorney’s Offices have distributed formal memos to their offices and law enforcement colleagues indicating their position on the matter, excerpts of which are below:
- Office of the State Attorney for the Eleventh Judicial Circuit (Miami-Dade): “Due to the fact that the speedy trial period under Florida Rule of Criminal Procedure 3.191 begins to run once a defendant is arrested, officers should not make a probable cause arrest for a cannabis-related offense until obtaining a positive laboratory result.” “We will not be prosecuting misdemeanor marijuana possession cases.”
- Office of the State Attorney for the Second Judicial Circuit: “This Office will no longer be charging people with possession of cannabis absent a confession to what the substance is or testing by a lab that can meet the evidentiary standards I have laid out. We will also not be approving search warrants or other legal process based on traditional predicates where officers, or their dogs and presumptive tests, feel a substance is cannabis. I know this is a significant change in the law and would caution you in making arrests when these issues are present.”
- Office of the State Attorney for the Nineteenth Judicial Circuit: “Due to speedy trial considerations, officers should not make a probable cause arrest for a cannabis-related offense until obtaining a laboratory result. Agencies should also consider that the cost of testing may be prohibitive. Likewise, the cost of obtaining witnesses from an out of state laboratory may be prohibitive. Cases should be evaluated on an individual basis.”
- Office of the State Attorney for the Fifteenth Judicial Circuit: “We will not be able to prosecute any marijuana or THC oil cases without a test from an accredited lab indicating that the THC content is over .3 percent.”
Office of the State Attorney for the Sixth Judicial Circuit (Pinellas – Pasco):
In a Tampa Bay Times article on this issue published July 15, 2019, the elected State Attorney for Pinellas and Pasco Counties, Bernie McCabe, indicated that his office will decide whether or not to prosecute a possession of marijuana on a case-by-case basis. McCabe stated, “We’ll just have to see, I don’t have an easy answer, and obviously the statute doesn’t provide me an answer.” Pinellas County has its own lab that as of this writing is unable to differentiate between legal hemp and illegal cannabis. It is expected that within the next 90 days that the Pinellas County Forensic Laboratory will have a test to differentiate between over or under 1% of delta-9-tetrahydrocannabinol (THC) on a dry-weight basis.
Office of the State Attorney for the Thirteenth Judicial Circuit (Hillsborough):
In the same Tampa Bay Times article, Hillsborough County’s State Attorney, Andrew Warren, indicated that his office will send “low level” (presumed to be misdemeanor) cases to arrest diversion programs and concentrate his office’s efforts instead on drug trafficking and violent crimes. Hillsborough County (along with Pasco County) sends its samples to the Florida Department of Law Enforcement (FDLE) for testing who also is unable as of this writing to differentiate between legal hemp and illegal cannabis.
What Can You Do?
If you in fact have legal hemp / CBD in your possession, you should say so. Declaring that you possess hemp or CBD as opposed to illegal marijuana may help you avoid a custodial arrest.
If you have been arrested for Possession of Marijuana in the Tampa Bay area including St. Petersburg, Tampa, Clearwater, Largo and the surrounding counties of Pinellas, Hillsborough, Pasco, Manatee or Sarasota, call the Morris Law Firm for a strategy session on your case. Call 727-388-4736, Option #1 for New Clients.