What’s that smell?

Law enforcement faces quandary over hemp and marijuana

Rick Patrick
ECB Publishing, Inc.

On almost any given week, one can examine the jail report and find anywhere from two to five, or more, people who were charged with marijuana possession of less than 20 grams.
However, with the legalization of hemp, these numbers could possibly go down.
The reason for this is being that marijuana (which is still illegal to possess in the State of Florida without a proper prescription) and hemp are basically the same thing, with one significant distinction. That distinction is the amount of tetrahydrocannabinol (THC) present in the substance. THC is the psychoactive chemical compound found in marijuana that gives users their "high." Less than 0.3 percent, and the substance is legal hemp. Over 0.3 percent and the substance becomes marijuana.
The problem facing law enforcement officers when attempting to enforce marijuana laws is that, without testing the substance for its THC level, it is virtually impossible to distinguish between the two. The old "stop and sniff" method of establishing probable cause can be called into question, because there is no difference in the smell of legal hemp and illegal marijuana.
This has caused a great deal of confusion in terms of enforcing existing marijuana possession laws. As a result, many jurisdictions are simply deciding it is too costly and difficult to navigate the legal murky waters.
In Tallahassee, State Attorney Jack Campbell, with the Second Judicial Circuit, has decided, for the time being, not to prosecute marijuana possession charges. "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 Campbell in an interview with WFSU News. This means, if a person is suspected of having marijuana, then the substance in question must be sent to a private lab for testing, at a much greater expense.
The "hemp vs. marijuana" dilemma is not unique to Florida. Texas has found itself in a similar situation. In that state, many district attorneys have dropped hundreds of low-level marijuana possession charges.
Currently, there are no state labs in Texas to test for THC levels.
The Texas District and County Attorneys Association has issued an advisory to its members. "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," said the advisory.
Before anyone in Texas feels they have been given a "green light" in terms of marijuana possession, they should know that, in Texas, marijuana possession is still illegal and could still be prosecuted.
In a letter addressed to the Texas District and County Attorneys, and signed by Texas Governor Greg Abbott and Texas Attorney General Ken Paxton, district attorneys were urged to continue to prosecute marijuana possession charges. "This regulation of hemp did not abolish or reduce punishment for the possession of marijuana, which remains illegal under state law," said the letter. The letter goes on to instruct the state's prosecutors that, in Texas, a certificate is needed in order to transport hemp. "Criminals should be on notice that they may continue to be prosecuted for possession of marijuana and may now be prosecuted for illegal possession of hemp without a proper certificate."
It is unknown if Florida has a similar certification requirement for the possession of hemp.
The dilemma facing law enforcement agencies has not gone unnoticed by the Jefferson County Sheriff's Office (JCSO).
“We will handle each investigation on a case by case basis and continue to follow Florida Law,” says Sheriff McNeill. “To be clear, the possession of non-prescription marijuana is illegal and can be prosecuted when applicable.”