It is marijuana or legal hemp? State drops minor cases – Gainesville Sun

It is marijuana or legal hemp? State drops minor cases - Gainesville Sun

The new Florida law legalizing industrial hemp has posed a problem for law enforcement. It can look and smell like marijuana, but no labs have been certified to test it.

The legalization of hemp earlier this year for use in health products, clothing and other goods has prompted Eighth Circuit State Attorney Bill Cervone to drop what few minor marijuana cases were pending and to provide guidance to law enforcement agencies on to handle potential pot cases.

Cervone took the action because officers cannot tell if an odor of marijuana is actually pot or is legal hemp.

“We don’t have that many cases, but I’ve instructed my folks that for the time being, since we cannot produce lab information we would need, we can’t go forward on cases after July 1,” Cervone said. “I think I have an ethical obligation not to go forward just to see what happens with the defendants when I know I can’t meet what the law requires.”

The Florida Legislature this year passed a bill legalizing industrial hemp, and it is hoped the production will be a boost to state agriculture. Gov. Ron DeSantis signed the bill in late June.

Hemp is related to marijuana. It looks similar and smells similar but has very little THC, the chemical that produces a high in marijuana use. In Florida, hemp must have less than .35% THC to be legal.

But laboratory testing to determine the content has not been approved in the state, creating an issue for prosecutors who would have to try to prove a case.

Cervone wrote a memo to all law enforcement agencies in the Eighth Circuit with guidance on how they should handle potential cases, which often result from a traffic stop in which officers smell marijuana and use that as probable cause for search.

The sight and smell test is no longer enough to go forward. A police dog’s positive alert is likely not sufficient either. An “odor plus” approach can be used for charges if additional indications exist such as related criminal activity, an admission or signs of deception.

If an officer does decide to charge, it should be via a sworn complaint and not an arrest, Cervone said. When a sworn complaint is filed, Cervone’s office decides if the case should move forward, which could then lead to formal charges and arrest.

Law enforcement agencies have gotten the message. Alachua County sheriff’s spokesman Art Forgey said deputies are abiding by Cervone’s guidance.

“We don’t have test kits that can differentiate hemp from marijuana. Right now we are not really making marijuana arrests unless they are able to verify it some other way,” Forgey said. “A lot of times they would smell marijuana and bring the dog in, and it would alert. They may smell marijuana now, but that is not sufficient.”

Cervone said hemp did not get much attention from a law enforcement perspective when the Legislature was deciding the hemp bill because it primarily went through agriculture committees.

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