New law impacting arrests, prosecutions in cannabis cases

Texas resident Zachary Miller became something of a Florida celebrity in mid-July after being arrested following a traffic stop in Okaloosa County on charges of possessing marijuana and hallucinogens with the intent to distribute them.

The owner of a business called Texas Remedy Hemp, Miller was returning home from Miami, where he said he had been displaying hemp and CBD products at a CBD wellness exposition.

The arrest report filed in his case confirms Miller’s contention that he cooperated fully with officers, allowing his vehicle to be inspected and opening his trunk to display the many CBD, hemp products he had carried to the expo. The report states he told deputies “he had been selling these products for the past four years and never had a problem with his merchandise.”

The deputy who pulled over Miller’s car wrote that he'd found “a small cigar which contained suspected marijuana” in the central console of the vehicle, “a vape pen containing suspected THC oil, a small glass container holding suspected marijuana residue and three prepackaged cigars of “suspect marijuana.”

“All items were field tested and yielded a presumptive positive result,” the report said.

Florida media outlets picked up on the June 26 arrest and used it to point out that field testing done by law enforcement officials had become outdated in a world where possession of items with very low levels of THC has become increasingly acceptable.

“I’ve counted at least eight shops in Okaloosa County selling exactly what I got arrested for,” Miller said this week.

The publicity Miller’s case received didn’t faze the Okaloosa County Sheriff’s Office or the First Judicial Circuit State Attorney’s Office. His prosecution on two felony charges remains on the court docket, with a pre-trial conference scheduled for Aug. 28 and a court date slated for Sept. 16.

But Senate Bill 2010, which was signed into law the day before Miller was arrested and went into effect five days after, excluded hemp from the definition of cannabis, making hemp products, including CBD extracts with less than .03 % THC, legal in Florida.

The new law has forced the State Attorney’s Office to rethink prosecutions in many cases, Miller’s included.

Bill Bishop, the chief assistant state attorney in Okaloosa County, said the First Judicial Circuit of Florida has made a decision to continue to prosecute marijuana cases, “though the change in the law will make it more difficult to do this.”

“We’re going to look at each case independently. There are several factors we can use to determine whether something is marijuana,” Bishop said.

Miller’s case, Bishop said, is still in the discovery phase, and no decision on whether to take it to trial will be made prior to prosecutors completing their due diligence.

“The discovery could take weeks or months,” he said. “Once we have it completed we will evaluate where we stand.”

Not all State Attorney’s Offices in Florida have taken the same stance on marijuana prosecution that the First Judicial Circuit has.

Because law enforcement tests conducted to detect marijuana don’t necessarily differentiate between the extremely low levels of THC in hemp products and the much higher (5.0% and up) percentage in marijuana smoked to induce a euphoric buzz, some jurisdictions, like the Eighth Judicial Circuit that includes Gainesville, have announced that misdemeanor marijuana charges will no longer be prosecuted.

A primary reason local prosecutors want to be selective in deciding which cases they take to court is the cost, Bishop said. Due apparently to the fact prosecutors can't rely on law enforcement field testing, Bishop said the First Judicial Circuit State Attorney’s Office has searched out private labs in the state that have the ability to do the testing necessary to differentiate between hemp and marijuana.

“That testing will be very expensive and that’s why we’re going to keep looking at a case by case basis,” he said.

Prosecutors will only have the opportunity to evaluate cases brought before them by law enforcement agencies, and local police departments and sheriffs’ offices, will have to decide how they want to treat marijuana cases.

Walton County Sheriff Mike Adkinson said the passage of the hemp legislation has rendered any law prohibiting possession of small amounts of marijuana practically moot.

 "It's just not practical to make an arrest for simple possession absent something more than that being found or occurring on the scene," he said.

The Okaloosa County Sheriff’s Office, which brought the case against Miller, isn’t saying whether its stance on making marijuana arrests has changed since the passage of SB 2010.

“We aren’t going to discuss specific law enforcement tactics and/or changes to those tactics,” a statement from the Sheriff’s Office said.

Santa Rosa County Sheriff Bob Johnson said his office will wait until case law comes down from the courts before determining whether changes will be made to the way deputies enforce marijuana laws.

The Fort Walton Beach Police Department is training officers to follow a current best practice in the state related to hemp/cannabis detection called “Odor Plus,” which considers the totality of circumstances – not just odor, said Chief Robert Bage.

In Crestview, city police will continue field testing for marijuana, and, according to Maj. Andrew Schneider, making arrests on a “marijuana versus hemp” basis.

“Most marijuana contains between 5% and 30% THC … hemp on the other hand, contains around 0.3%,” he said. “Currently, the field testing of marijuana will react more quickly, in fact it is an immediate change … we consider this a positive test.

“When testing hemp, the THC composition is so low that the chemical in the testing capsule doesn’t react immediately. The chemical reaction is very slow and does not immediately appear to be a positive test,” Schneider said. “Ultimately it is not considered a positive field testing and therefore we do not have probable cause to make arrests.”

Florida Department of Law Enforcement labs make the ultimate decisions whether the positive field tests have indeed located marijuana, Schneider said. And, if so, the cases made are prosecuted.

Click to listen: 

LISTEN: From the Newsroom Audio