State officials have heralded hemp as a new wonder crop. But the plant’s recent legalization is complicating efforts to prosecute marijuana-related charges, and has left police and prosecutors alike scrambling for a solution.
As state attorneys from across Florida huddled in Naples this week for their summer conference, one issue was at the front of everyone’s mind: a new state law has made charging people for marijuana possession much harder.
Congress paved the way to legal hemp in the 2018 Farm Bill, opening it up to the states to draft rules.
State lawmakers didn’t waste any time this legislative session, sending a bipartisan bill sailing through both chambers.
SB 1020, which took effect July 1, allows for the cultivation and sale of hemp and hemp products, like CBD oil, rope and fabric. Under the law, hemp can contain up to 0.3% THC, the high-inducing psychoactive ingredient also found in marijuana.
The measure has essentially stopped law enforcement in its tracks.
“There’s literally no state lab in the state of Florida that can do testing and say ‘this is hemp,” or ‘no, this is marijuana,’” said Jack Campbell, state attorney for Florida's second judicial circuit.
Hemp and weed are nearly indistinguishable. They look and smell the same, and come from the same plant.
Prior to the hemp law, if an officer suspected someone of having marijuana, he or she would use a field test. But the field tests, used throughout the country, aren't capable of distinguishing between hemp and weed.
A legal bulletin from the Leon County Sheriff's Office said “the current tests kits in use by law enforcement do not have the capability to distinguish between legal hemp and illegal cannabis, and thus cannot be used to determine probable cause.”
With field tests out of the picture – at least temporarily – this ends a decades-old practice known as “sniff and search,” or using the smell of marijuana as probable cause to conduct a search.
The only way to determine if a cannabis sample is hemp or weed is to send it to a private, certified laboratory. These tests are expensive, and local agencies are left to foot the bill.
Some jurisdictions have decided to stop prosecuting minor pot charges altogether. The Palm Beach Post reports Martin County Sherriff William Synder told his deputies to stop making marijuana arrests.
While prosecutors and agencies try to find the best path forward, Columbia County Sheriff Mark Hunter says he’s not going to stop charging people for marijuana possession. Instead, Hunter, who is the president of the Florida Sheriff's Association, is relying on the courts to navigate the issue.
"We’re going to have to be more vigilant on articulating our probable cause whenever we’re doing citizen contacts to ensure that we’re doing the right thing,” Hunter said.
State Agriculture Commissioner Nikki Fried has been one of hemp’s biggest supporters. She has lobbied for a hemp program since taking office last January – even appointing Florida’s first ever cannabis director to oversee its rollout.
The hemp law delegates regulatory authority to the Agriculture Department. Fried's spokesman, Max Flugrath, said the department is looking into the issue.
“As our Department has been working through the rules for the new state hemp program,” said Flugrath, “we have been in constant communication with state and local law enforcement agencies – our Office of Agricultural Law Enforcement has been making outreach efforts to ensure they are informed and up to date.”
The problem isn’t unique to Florida. In Texas, a group of district attorneys announced last week they’ve dropped hundreds of low-level pot charges, according to the Texas Tribune.
None of the state labs in Texas are capable of distinguishing hemp from weed either, according to an advisory from the Texas District and County Attorneys Association.
“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” the advisory said.
Both Texas’ and Florida’s laws draw language from the federal Farm Bill. So, it’s not unlikely other states could see similar problems, as well.
State Attorney Jack Campbell says that doesn’t change the fact that marijuana is still illegal. But, Campbell acknowledged, finding a solution is going to be expensive, and could take months.
Some third-party labs are developing field tests that could tell if a cannabis sample contains more or less than 1% THC, but Campbell said there’s no timeframe on when those could be available for use.
In the meantime, he said, “I think you’re probably going to see people get caught or arrested when they have CBD or hemp, thinking that it’s illegal. And I think that the reverse is also true.”
When asked for comment, a spokeswoman for state Attorney General Ashley Moody twice pointed to an unrelated statute that prohibits her from giving advice to private citizens, then did not return a request for clarification.