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Florida prosecutors: Sniff test isn't enough for misdemeanor marijuana cases

Prosecutors: Won't prosecute unless lab tests prove substance isn't hemp

ORLANDO, Fla. – A new law has prosecutors pausing misdemeanor marijuana cases. Their new mandate is changing what happens to people found with marijuana.

The new law has legalized hemp, and no longer includes the substance under the cannabis definition. This law allows people to legally possess hemp with minuscule amounts of THC, about .3% or less.

Now prosecutors across Central Florida have alerted police departments and sheriff's offices that any pot cases presented to their office will have to have an independent lab test proving the substance found is not hemp.

THC is the ingredient that creates the high if one were to use .3% or more. Though hemp plants and flowers look and smell much like cannabis, hemp has very small non-intoxicating concentrations of THC, which could change the legality of some drug arrests.

The Office of State Attorney Aramis Ayala with the 9th Judicial Circuit released a statement saying this new hemp classification also changes their cases.

“In most cases Assistant State Attorneys will lack a good-faith basis to believe a case can be proven beyond a reasonable doubt without scientific analysis from an accredited independent testing laboratory,” the statement reads.

[READ FULL STATEMENT BELOW]

"Effective July 1, 2019, the Florida Legislature amended the definition of Cannabis as found in Florida Statute 893.02(3) to exempt Hemp. Hemp is defined as Cannabis that has a total THC concentration that does not exceed .3% on a dry-weight basis.

While cases will continue to be presented to our office and each will be evaluated on its individual merits, it is not only foreseeable, but highly likely that in most cases Assistant State Attorneys will lack a good-faith basis to believe a case can be proven beyond a reasonable doubt without scientific analysis from an accredited independent testing laboratory.

Therefore, prior to filing cases involving suspected cannabis, a lab report with results indicating that the tested substance’s THC concentration exceeds .3% on a dry-weight basis is required. Without a corresponding lab result, no ASA is authorized to prosecute these cases."

State Attorney Phil Archer with the 18th Judicial Circuit, which covers Brevard and Seminole counties, sent a similar memo to all law enforcement agencies saying distinguishing between hemp and cannabis by mere sight or smell is virtually impossible. 

The concern is growing as hemp has now gone mainstream. It's showing up in everything from soaps, hand creams, T-shirts and oils. It’s become a multi-billion dollar industry and all that more common.

But law enforcement technology in Florida has not caught up with the times.

Roadside tests and state labs with the Florida Department of Law Enforcement can only test whether THC is present - not at what percentage.

But the argument is that the sniff test is not enough.

State attorneys in Central Florida have told all law enforcement agencies that they will require a lab test result showing the levels of THC before the filing of any cannabis related charges. They also explained their offices will need probable cause to make an arrest.

Central Florida law enforcement has responded to prosecutors, pointing out this new mandate does not mean an officer can't stop you and search you or your car if they smell marijuana. But they are working to change their strategy, when making drug arrests.

In July, officers everywhere got memos from their departments, stating new protocols and new questions they have to ask suspects in order to make an arrest.

Orange County Sheriff’s Office sent a legal bulletin stating until further notice, presumptive tests may not be used to determine whether a substance is illegal cannabis. >>LINK HERE<<

Orange County Sheriff John Mina said the new law made them take a closer look at how to handle these kinds of cases.

"We actually ordered some hemp to see for ourselves, to see what the presumptive test does, to see what it felt like, smells like, looks like marijuana," said Mina. "So that's why we are going to rely on the totality of the circumstances."

But at the end of the day, Mina said the new law and state attorney mandates will do little to affect day-to-day operations on the streets.

"Really our focus is on more dangerous drugs," said Sheriff Mina. "Heroin, fentanyl, cocaine."

The Seminole County Sheriff’s Office has also reacted to the new mandates, saying they plan to continue to focus on their main concern: arresting traffickers, distributors and those who contribute to substance abuse.

[READ FULL STATEMENT BELOW]

“Our deputies have always been able to evaluate each situation on its own merits, using their discretion and in light of the circumstances. A factor we always consider is the likelihood of successful prosecution. Our concern and focus has always been and will continue to be the traffickers, distributors, and those contributing to the ongoing substance abuse issues across the state.”

Bob Kealing, Seminole County Sheriff’s Office

Winter Park Police responded to News 6, calling the state attorney requirements new hurdles when trying to prosecute cannabis cases. They plan to continue evaluate each investigation on a case-by-case basis.

Daytona Beach Police Department also sent a memo to all their sworn personnel the day before the law went into effect, anticipating changes in their protocol. >>LINK HERE<<

State Prosecutor Phil Archer said the law still needs to seek justice but the biggest hurdle for prosecuting cannabis cases in his office is money. 

He said while sending evidence to an independent, out-of-state lab for testing only runs between $70 to $100, getting an out-of-state expert to testify could be cost prohibitive with the limited amount of funds they receive from the state.

"They're going to charge I've heard anywhere from $200-$300 an hour to $600 an hour for expert testimony," said Archer. "That will basically prohibit us from doing most cannabis prosecutions."

But Mina said that doesn't mean officers are going to give a pass to anyone smoking or carrying marijuana illegally. Officers will make arrests if they find things like scales, pipes or other illegal narcotics in the car.

"It's not like we are going to turn the other cheek, there's other things we can do," Mina said. “The smell, coupled with other factors, seeing hand to hand transactions, drug paraphernalia, statements made post-Miranda, all are going to lead us to a point where we can make an arrest, or not make an arrest."

Mina said some of those other things they can do include notices to appear and trying to get people into a drug diversion program.

Meanwhile, Archer said there is a push to get an independent lab here in Florida to start testing for those THC levels. He said so far, the one lab they could use here in the state lacks DEA certification.

The attorney said a lot will have to happen before they can start prosecuting misdemeanor marijuana cases without those specific tests.

“We are hoping there are some solutions on the horizon, but we will have to wait and see,” Archer said.

Archer said he and his office are reviewing all their cannabis related cases that happened before July 1 to make sure all cases are handled fairly under the new law. They will be prosecuting cases involving the sale or high possession amounts of marijuana that are discovered by officers.