ORLANDO, Fla. — Florida's new hemp law went into effect three weeks ago. It made hemp legal up to .3% THC in the state. But investigative reporter Karla Ray has learned that there's no way for local law enforcement to determine the difference between hemp and marijuana.
Some agencies are now warning their officers not to make custodial arrests for suspected marijuana at all.
A memorandum sent out by Seminole/Brevard State Attorney Phil Archer says his office will not file charges in cases involving suspected marijuana until there is a lab test done to prove the THC level in the substance. That’s something no certified field test can do, and Archer’s memo indicates that FDLE cannot do it, either.
Hemp looks and smells just like marijuana, and that’s a problem for Florida law enforcement following the change to the law.
“There’s no clarity on what they’re supposed to do or not supposed to do,” defense attorney Jeff Lotter said. Lotter specializes in DUI cases and he is also a former law enforcement officer, who still teaches potential new officers in academy.
Lotter says the change makes it more difficult to establish probable cause to search for more serious drugs or weapons, with no way to tell the difference between hemp and cannabis based on sight, smell, or even field testing.
“The probable cause to search a car is one thing, but the proof beyond a reasonable doubt requires the state prove the THC content of the substance,” Lotter said.
Archer wrote in his memo, sent to the law enforcement agencies in his circuit last week, that "FDLE state labs have stated they are not able to test the percentage of THC in a sample and there is no current plan to do so."
In Volusia, Sheriff Mike Chitwood’s legal team just issued a warning to deputies not to make any arrests for possession of hemp or marijuana, and to instead file a capias request.
A similar directive was sent to Kissimmee police officers, ordering arrests only to be made if a suspect admits post-Miranda that they’re in possession of illegal marijuana.
“There are definitely significant legal challenges to prosecution right now,” Lotter said. “The infrastructure at FDLE or some other laboratory would have to change.”
If an officer sees other factors such as impairment, or scales that could indicate trafficking, they can still move forward to make arrests, but actually prosecuting marijuana charges without lab tests is more challenging. There could be private or out-of-state lab options, but those cost agencies more money.
Orlando police said they issued a three-page directive, telling officers they can still search vehicles or people if they believe cannabis is present, but if they are unsure that what is seized is in fact illegal marijuana, the suspect can be let go.
In that case, officers are urged to submit an "at large" capias request to the State Attorney’s Office for review.
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