Hemp legalization means new policies on marijuana cases for Orange and Seminole counties

Hemp looks like marijuana, smells like marijuana, and has THC, just like marijuana. But hemp is now legal, because it has such minimal amounts of that psychoactive ingredient the effects are moot.

With the newly enacted legalization, Central Florida law enforcement agencies are re-training officers on how to deal with marijuana arrests. The similarities between the two mean there’s an increased legal burden when prosecuting marijuana cases. State law now says that hemp does not exceed 0.3 percent THC.

Both Orange-Osecola state attorney Aramis Ayala and Seminole and Brevard state attorney Phil Archer say this change makes it challenging to reach the high burden of proof needed to bring marijuana cases to court.

In both counties, prosecutors will not be allowed to charge cases unless there’s a lab test proving the substance is marijuana, that is, above the set THC threshold.

“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," Ayala said in a statement. “ Without a corresponding lab result, no ASA is authorized to prosecute these cases.”

Archer issued a memo in part stating laboratory testing will be required before filing any cannabis-related charges. At the same time, Florida Department of Law Enforcement labs cannot distinguish THC levels “and there is no current plan to do so,” according to the memo.

Cannabis can be shipped out of state for tests, but the costly process is only allotted for the most serious of cases. Right now, officials said, each will be evaluated on a “case by case basis.”

The result?

Todd Brown, State Attorney spokesman for Seminole and Brevard, said in a statement the need for testing “will have a significant impact on the number of offenses charged by law enforcement.”

Right now, it’s not clear what the numbers will be. But, law enforcement and the courts are seeking to avoid arresting innocent people with hemp products within the legal THC threshold.

“Because the two plant products are indistinguishable except for the concentration of THC, traditional methods of establishing probable cause for arrest, as well as satisfying the criminal evidence standard at trial, were significantly impacted,” Brown wrote in an email. “Additionally, the expenses associated with both the testing of evidence samples, and the appearance of expert witnesses at trial, now play a role in the prosecution process.”

Before passage of the Farm Bill, which effectively legalized hemp this July, officers could rely on their presumptive field tests to establish probable cause for a marijuana arrest. Now departments have a new tool book for detecting weed. Every department has a different approach.

Over at Orlando Police Department, officers received a training bulletin on June 21 which outlines seven factors law enforcement must consider to determine legality. That is: how the substance is packaged, any statements or admissions made by the suspect, presence of other illegal substances, evidence of purchase from a reputable retailer, quantity, whether the suspect is actively smoking, and whether they have a criminal history of knowingly possessing illegal drugs.

It's worth noting the 0.3 THC threshold applies to CBD oil as well, as long as it's derived from hemp. The bulletin specifically pointed out that CBD oil with no or little THC is legal.

The issue made headlines in May after a great-grandmother with arthritis was arrested for carrying CBD oil with no THC after an off-duty Orange County Sheriff's Office deputy found the product in her purse at a checkpoint.

However the bulletin adds, officers still have the authority to conduct warrantless searches of vehicles if there is “probable cause” there is marijuana. This can be based on observation, smelling burnt cannabis, or a police canine alert.

But in Seminole County, Archer's memo discourages officers from using smell or canine alerts when establishing probable cause to search.

"I am concerned that if a search is solely dependent on odor an appellate court may determine it is insufficient," it read.

The memo adds that it's "still unsettled" whether a dog alert gives probable cause for a search.

Orange County Sheriff’s, not weighing in on new training practices, said officers' priorities will be deadlier drugs such as cocaine and opioids.

"When it comes to marijuana, Deputies will make their decisions based on the totality of the circumstances; that could result in an arrest, notice to appear or no enforcement action at all,” the department said in a statement. “Our top drug enforcement priority and focus at the Orange County Sheriff’s Office has always been to get deadly drugs, like heroin, fentanyl and cocaine, off the streets of our community.”

Over in Seminole county, Oveido and Casselberry officials said they’re taking arrests one step at time.

“We are taking cannabis arrests on a case by case basis, and are not going to speculate on possible changes to our policies,” Oviedo Lt. Travis Cockcroft wrote in an email.

Casselberry Police Department is going to enforce the law when, and where, appropriate in the public’s best interests,” Commander Williams Has said by email, adding that he wanted to “thank Mr. Archer for his leadership and direction on this issue.”

Stay on top of Orlando news and views. Sign up for our weekly Headlines newsletter.