Moody, Gualtieri Say Stick With Marijuana Prosecutions Amid Testing Woes

Aug 5, 2019

Florida’s state-run crime labs don’t have the ability to determine whether a product is weed, CBD or hemp and the issue is stopping law enforcement in its tracks.  The state’s new hemp law is creating a patchwork of enforcement efforts and will likely need the legislature to step in.

A field of hemp plants rise tall and green against a blue sky
Credit P. Solomon Banda / AP Photo

In the beginning, there was “Charlotte’s Web”, a low-THC strain of cannabis consumed as an oil. Florida lawmakers approved its use in 2014 for treating epilepsy. Five years, and a constitutional amendment later, there’s now CBD—another low-THC strain of the plant that can be used in everything from edibles to hand lotions. There’s also the strong stuff, which needs a prescription.

“With edibles, gummies, the flowers, [and] all the products that are processed, that’s more challenging and I think to some degree that’s more of a hands-off situation because it’s very problematic to determine the true THC quantity of that, quite honestly," said Pinellas Sheriff Bob Gualtieri. He was recently elected head of the Florida Sheriff's Association. 

Now, courtesy of the federal government and a new state law, hemp is coming to Florida, thus creating a  the whole thing is now a patchwork of confusion for law enforcement, a circumstance Gualtieri calls “unfortunate”.

“A state attorney is going to have to make a determination based on the facts of whether they have a prosecutable case," he said. "And apparently you have others have taken a more categorical approach [in] that they’re just going to be hands off, and I think that’s unfortunate for the people, the citizens out there. Because what we should have as a system is a system where everyone knows what the law is.”

With so many cannabis-derivatives on the markets today, law enforcement is having a hard time distinguishing between what’s legal and what’s not. In their raw form, CBD, hemp and marijuana all look and smell alike and come from the same plant, rendering state tests useless. The Florida Department of Law Enforcement says those tests only prove the plant is cannabis. They can’t distinguish between strains, nor can they tell how much high-inducing THC is in it.

The result: “I think you’re probably going to get people who get caught or arrested when they have CBD and hemp thinking that it’s illegal, and I think the reverse is true," said Second Judicial Circuit State Attorney Jack Campbell. His office recently announced it would no longer prosecute marijuana possession cases, though Campbell is making an exception in the recent seizure of more than 60 pounds of suspected marijuana that was found in the luggage of a woman returning to Tallahassee from California.

Gualtieri says the loss of ability to test cannabis is a blow, but says there are other ways law enforcement can still investigate cases.

“For example if they have a pound of this green plant material and let’s say it’s in a duffle under the seat and it’s got a whole bunch of plastic baggies and rubber bands…and distribution material with it and it’s done in a clandestine way indicative of illegal drug distribution, well, you’re not going to do that with a legal substance of hemp. You’re going to do that with an illegal substance. So there are different ways, circumstantially, to prove [it]," he says. 

But circumstantial evidence may not be enough for some courts.

While the Florida Department of Law Enforcement’s lab’s are out of commission for marijuana testing at the moment, not all agencies use them. There are still private and independent labs that can test—but the Second Judicial Circuit’s Campbell notes that’s time consuming and expensive. “It’s going to be an unfunded mandate.”

FDLE is acknowledging the cost problem, both for the independent labs as well as its own labs. It said in a statement that “this requires a more complicated and time consuming process and the laboratories struggle to keep up with the current workloads.  Implementing even a semi-quantitative testing process will require additional equipment and personnel to handle the increased submissions and the lengthier exams.”

Gualtieri says people should remember that marijuana is still illegal under federal law. And he’s encouraging agencies across the state to keep up with charges and prosecutions:

“People shouldn’t get a pass if they’ve got 5 lbs of marijuana and they have 20% THC and they’re peddling it to kids. We’re going to make sure the law is followed.”   

That’s echoed by Florida Attorney General Ashley Moody’s office which said in a statement that “Attorney General Moody believes law enforcement and prosecutors have an obligation to enforce the law.”

Moody’s office is also calling for FDLE to work with law enforcement agencies to shore up its testing abilities, “as soon as possible.”