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New Hemp Law Makes it Harder to Prosecute Florida Marijuana Cases

On June 25, 2019 Florida Governor Ron DeSantis signed Florida Senate Bill 1020, regulating the production and distribution of hemp and hemp extracts in Florida, including the increasingly popular hemp derivative, cannabidiol (CBD). The bill makes Florida the latest state to enact legisla­tion to legalize and regulate its hemp industry.  The bill mirrors similar action at the federal level late last year when President Trump signed the Farm Bill removing hemp from the list of controlled substanc­es, making it legal to grow and sell hemp under federal law.

Hemp comes from the same cannabis plant that produces marijuana. Marijuana, however has much higher lev­els of tetrahydrocannabinol (THC), the chemical in the plant that is psychoactive and produces the hallmark “high” or euphoria.  Both hemp and marijuana contain CBD, a medical compound that has health benefits but is non-euphoric.

Under the Farm Bill, hemp is legal provided doesn’t contain more than 0.3 percent THC. If hemp contains more than 0.3 percent THC, it is still a federally banned controlled substance.  Similarly, Senate Bill 1020 excludes hemp from the definition of cannabis provided the THC concentration does not exceed 0.3 percent on a dry weight basis.

The new Florida law excluding hemp from the definition of cannabis has created serious issues for law enforcement in cases involving searches based on the sight and / or smell of marijuana.  The problem for law enforcement is hemp looks and smells like marijuana.  The standard until now was if police saw or smelled it, they had probable cause to search for marijuana.  And, if drug sniffing dogs alerted to your person or your car, then the police also had probable cause to search.

Now that hemp is legal with the passage of Senate Bill 1020, however, things just got very complicated for both law enforcement and the State Attorney in marijuana cases.  These new complications arising in marijuana cases was recently acknowledged by the Florida Sheriffs Association (FSA).  On July 16, 2019 the FSA issued alegal alertexplaining that now that hemp is legal, law enforcement can no longer rely on sight or smell alone to determine probable cause for a search for marijuana.  The alert notes numerous “enforcement issues” created by the bill and advises sheriffs across Florida to discuss the bill’s ramifications with their legal advisors, state attorneys, and other local law enforcement agencies.

The Florida Times-Union recently ran an excellent article on this issue.  They reached out to all 20 Florida state attorneys to determine how the new hemp law would affect searches, prosecutions and related issues going forward.  Twelve responded.  All of the responding state attorneys agreed the new law will affect how they approach and prosecute marijuana cases.  Seven said the new law alters the traditional probable cause standard used by police which relies on the sight and/or smell of marijuana to search potential suspects.  And, some also agreed drug-sniffing dogs – those trained to alert to the smell of any drug – are now obsolete.

Florida’s new hemp law makes the prosecution of marijuana cases much more complicated and difficult.  Perhaps more importantly, the new law affects what evidence prosecutors will be able to use in other types of cases as well where the smell or appearance of marijuana, or a drug dog’s alert, formed the basis of a search.  Thus, before the new law, if a police officer saw and/or smelled marijuana in a vehicle then they could search your vehicle.  Oftentimes a search would lead to the discovery of other drugs, guns, or other contraband resulting in numerous serious felony charges.  After July 1, 2019, however, if your car was searched because an officer saw or smelled marijuana, a capable criminal attorney may be able to prevent any and all incriminating evidence found during the search from being used against you.

If you’ve been arrested for any crime prompted by an officer’s claims of seeing or smelling marijuana in your car, or by a drug dog’s alert, it’s imperative you contact a Jacksonville criminal defense lawyer knowledgeable about the recent change in the law about searches based on such factors.  Call me now for a free consultation to discuss how I can help you have the best chance of avoiding a criminal conviction and jail and / or prison because of your misdemeanor or felony arrest in Duval, Clay, Nassau, Baker or St. Johns Counties.