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An Interesting Prosecutor’s Take on Marijuana versus Hemp

I heard two questions this morning that I want to share:

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First, what do you want?

Second, what do you want to want?

(credit: Harry Frankfurt, who believes that we must line these two questions up)

 

Ok, back to legal stuff.

There is a difference between hemp and marijuana.  This difference is scientific, and the distinction is driving law enforcement crazy because, basically, they cannot tell the difference between illegal cannabis, and the hemp plant that was legalized on July 1st, 2019.

Obviously, this impacts their ability to arrest someone for possessing weed, and it affects their ability to convict someone of possession of cannabis. Currently, law enforcement does not have a way to scientifically determine what is perfectly legal hemp from what may be illegal weed.  These two plants are identical.

So, without further ado, let me give you Seminole County State Attorney Phil Archer’s view on this, in its entirety. This letter is so good that several defense attorneys have proposed simply cutting & pasting it into a motion.

TO: All Law Enforcement Agencies, 18th Judicial Circuit

FROM: Phil Archer

RE: Cannabis Probable Cause and Prosecutions

DATE: July 16, 2019

Effective July 1, 2019, Section 893.02(3), Florida Statutes, was amended to provide that “cannabis” no longer includes “hemp” as defined in Section 581.217, Florida Statutes.  That section defines hemp as “the plant Cannabis sative L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.”  Effectively, hemp and hemp related products have been removed as a controlled substance at the state level which follows last year’s removal of hemp from the federal definition of a controlled substance under the 2018 Farm Bill.  This exemption impacts both probable cause determinations and the prosecution of cannabis cases.

I. Probable Cause Determinations

Distinguishing between hemp and cannabis by mere sight or smell is virtually impossible.  Raw hemp and illegal cannabis appear identical in “plant material” form.  Both substances can be smoked and have a similar smell which removes the tried and true “odor of burnt cannabis” as a factor conclusively establishing probable cause.  Both substances can also be refined into a variety of commercial products (oils, edibles, etc.) which will make it even more difficult.  The existing cannabis presumptive field tests are no longer sufficient to establish probable cause, as they can only identify the presence of THC in the sample, not the percentage of TCH required to exclude hemp products.  Recent reports of a field test that can make that determination have not been certified for use at this time, and it is doubtful that will happen in the near future.  Any offer of a field test that purports to make that determination should be carefully vetted before purchasing the product.

Many bulletins from a variety of law enforcement agencies and associations have been distributed that provide a non-exhaustive list of other factors that should be identified and documented in an attempt to establish probable cause.  These bulletins have described the process as “smell plus” or “odor plus”.  Officers should be able to articulate additional factors in addition to the smell or look of the substance, including such things as the impairment of the person and any admissions or statements that may be made.

Finally, the status of whether a dog alert is a viable establishment of probable cause by itself for a search is still unsettled.  A recent case decided by the First District Court of Appeal involving arguments related to medical marijuana give some hope (Johnson v. State, 1DCA, 7/9/19).  However, that case did not involve hemp which is not a controlled substance.  I am concerned that if a search is solely dependent on odor an appellate court may determine that it is insufficient.  The observation and documentation of additional factors are critical.

II. Prosecution of Cannabis Offenses

In any criminal trial involving a charge of cannabis, the state is required to prove beyond a reasonable doubt that the substance is, in fact, cannabis.  Previously, case law permitted the establishment of that fact through the testimony of the officer or deputy based on his or her prior experience and training, in large part due to the look, feel and smell of the substance.  That is no longer available because of the difficulties in distinguishing hemp from cannabis.  Even an admission by the Defendant that a substance is in fact illegal cannabis, cannot be presented prior to the state independently establishing the identity of the substance (known as the Corpus Delicti Rule).  To do that the state will be required to produce a lab analysis and expert witness to establish that the substance is cannabis and does not have a concentration level of THC greater than 0.3%.

The FDLE state labs have stated that they are not able to test the percentage of THC in a sample and there is no current plan to do so.  I am unaware of any private lab in Florida that is properly certified to complete the necessary lab work.  Out of state options may exist.  However, the cost of testing, as well as expenses associated with obtaining the appearance of the testing expert at trial, will be prohibitive in all except the most serious of cases.

Therefore, based on the evidentiary hurdles and speedy trial constraints we must overcome in prosecuting cannabis cases, the State Attorney’s Office will require a laboraty test result before the filing of any cannabis related charge.  You should take that into consideration before making any cannabis related arrests.

Additionally, current state funding for expenses associated with the appearance of expert witnesses are not sufficient to cover the dozens, if not hundreds of cannabis cases requiring concentration testing under the new law.  We are provided very limited funds by the state each year and exhausted those funds this year without the impact of cannabis cases.  As a result, these appearance and travel costs will shift to the arresting agency in all misdemeanor and felony simple possession cases set for trial and should be discussed with the lab as part of any contract you may enter with them.  We will attempt to cover the expert witness cost on felony trafficking and sale cases until it is determined that we are fiscally unable to do so.  To do otherwise would negatively impact our ability to prosecute more serious cases.

The state of the law is in flux and constantly changing.  We are closely monitoring these issues and I will be updating you as often as necessary.  Please do not hesitate to contact me should have you any questions or seek further guidance in this area.

Archer Letter re Cannabis Stops