Miami-Dade won’t prosecute minor pot cases. And cops can’t act on a sniff test alone

In a significant policy change spurred by new Florida law, the Miami-Dade State Attorney’s office announced it will no longer prosecute minor marijuana cases. And for amounts large enough for felony charges, police will now be required to get lab tests to confirm that marijuana is, well, actually marijuana.

Prosecutors announced the decisions on Friday in response to a new Florida law that legalized hemp, a plant very similar to marijuana but with only trace amounts of the cannabis chemical that gets users high. The decision was outlined in a three-page memo sent this week to police agencies in Miami-Dade County that also mandates more than just a funny smell for cops to stop suspects.

“Because hemp and cannabis both come from the same plant, they look, smell and feel the same,” Miami-Dade State Attorney Katherine Fernandez Rundle wrote in explaining the decision. “There is no way to visually or microscopically distinguish hemp from marijuana.”

The decision highlights the increasing complications for law enforcement in Florida and across the country in states where recreational marijuana remains illegal, but hemp is now allowed.

Law enforcement agencies across Florida have struggled to navigate the gray area created by the new law. Late last month, Tallahassee-based State Attorney Jack Campbell instructed staff to put a pause on prosecuting marijuana possession, citing the state’s new hemp law and claiming labs can’t detect the difference between marijuana and hemp.

The high cost of making cases for minor amounts of pot is also an emerging concern for prosecutors beyond Miami-Dade. In Seminole and Brevard counties, the Orlando Sentinel reported, prosecutors say the added expense of sending marijuana to labs outside of Florida and obtaining expert witnesses to testify in court makes those options “prohibitive in all except the most serious of cases.”

Martin County Sheriff William Snyder told West Palm Beach TV station WPTV his agency “will not be making marijuana arrests,” and said efforts to pursue marijuana cases are “dead in the water” because of the inability to test for THC, the euphoria-inducing chemical in marijuana.

The issue has even popped up in states such as Ohio, where prosecutors have faced similar challenges after the state decriminalized hemp.

States began approving medical marijuana laws in the mid-1990s, and today 33 — including Florida — have approved such programs. In addition, 10 states have ushered in recreational marijuana, even though federal law still forbids the drug.

Even before this week’s memo, misdemeanor marijuana cases in Miami were not being prosecuted as aggressively as in years past as public attitudes about marijuana have softened in recent years.

Miami-Dade County and cities across South Florida have instead created “civil citation” programs that dole out fines for minor marijuana possession.

Even people arrested on misdemeanor marijuana charges over the past couple of years haven’t had the book thrown at them. The Miami-Dade State Attorney’s Office had a program in which the charges were dropped if a defendant stayed trouble-free for at least 60 days.

State Rep. Shevrin Jones, D-West Park, wants to enshrine this middle ground into law, decriminalizing the possession of small amounts of marijuana statewide. His proposal, filed Wednesday, specifies that a person in possession of 20 grams or less of cannabis and products containing 600 milligrams or less of THC would face reduced penalties. Currently, possession in these amounts is a first-degree misdemeanor, with penalties including a year in prison and a $1,000 fine.

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In the meantime, legal issues surrounding marijuana and hemp continue to grow hazier since the passage of the federal “Farm Bill” which went into effect last December. The law removed prohibitions on industrial hemp that had been in place since 1937. The bill authorized states to create hemp programs beyond the university research setting, classified hemp as an agricultural commodity and took it off the federal controlled substances list.

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In light of the federal legislation, the Florida Legislature passed a hemp bill earlier this year that allows the Department of Agriculture and Consumer Services to create a state hemp program. The new law, which went into effect July 1, also gives guidelines to those who want to eventually sell hemp extract, like required third-party testing, bar codes for users to scan and research information and a statement that the product does not contain more than 0.3% THC.

The hemp program will go into effect once the rules get the green light from the United States Secretary of Agriculture. The deadline to submit the rules was last Thursday.

In criminal court, Miami-Dade’s new approach appears to be the most detailed in the state.

Fernandez Rundle, in the memo, spells out marching orders for police that will all but decriminalize the possession of small amounts of pot. In Florida, it is a misdemeanor to have 20 grams or less of marijuana; that’s less than three-quarters of an ounce.

Those cases, she wrote, simply aren’t worth the cost. Scientific experts will now be needed to testify in marijuana cases, making proving misdemeanor marijuana cases a “significant expenditure” in all but the most “exceptional circumstances,” her memo read.

In other changes in Miami-Dade, because hemp and marijuana look and smell the same, police officers can no longer stop someone solely because they see or sniff the drug, prosecutors said in this week’s memo. Cops must also look out for other factors, such as a suspect “sweating when it is not hot,” “avoiding eye contact” or possessing firearms, pipes or “discarding, destroying or trying to hide a substance.”

The memo also effectively halts any marijuana prosecutions in Miami-Dade — at least for the short-term. That’s because right now, according to the memo, there is no police crime lab in South Florida that tests for THC. Miami-Dade Police’s crime lab is hoping to have the capability to test marijuana for major felony cases within three to six months.

“Once the MDPD lab can again conduct such testing themselves, then this all becomes moot,” Fernandez Rundle said in a statement to the Miami Herald. “This is just a stumbling block, and not a death knell to the prosecution of marijuana cases.”

Right now, roadside tests and Florida Department of Law Enforcement labs can only test whether THC is present, but not how much is there — the key to telling the difference between hemp and pot. At least one private company, EVIO Labs, which has facilities in Davie and Gainesville, has been contracted by some police departments in Broward County and Tallahassee. It says it processes about 200 samples a day, and can nail down the precise amount of THC in a sample.

But Campbell, the State Attorney in Tallahassee, wrote in a recent letter that he “would not recommend” law enforcement invest in the lab’s testing. But EVIO’s president, Chris Martinez, defends his company’s testing accuracy, saying his lab has invested $4 million in equipment and software upgrades to make its potency testing “the very best in the country.”

“There is a lot of money invested in this industry,” Martinez said. “This is what legitimizes the industry.”

In South Florida, police departments were not surprised by the State Attorney’s announcement.

Miami-Dade Police Director Juan Perez said the legalization of hemp forced the decision and “we are working on ways to be able to overcome the challenges.”

On Miami Beach, Police Chief Richard Clements sent an email to officers saying cops “shall not effectuate any further arrests for marijuana-related criminal violations until the department can find a lab to test the drug. Still, officers should seize the suspected drug for future testing, he wrote.

In a statement to the Miami Herald, Clements wrote that the law change and the “subsequent decision by the Miami Dade State Attorney to not prosecute marijuana cases greatly hinders our efforts to address the still illegal aspects surrounding marijuana.”

“We will work with our law enforcement partners, to include the State Attorney’s Office and ensure we are able to overcome this hurdle and maintain our commitment to keep our residents and visitors safe.”

Miami Herald staff writer Charles Rabin contributed to this report.

David Ovalle covers crime and courts in Miami. A native of San Diego, he graduated from the University of Southern California and joined the Herald in 2002 as a sports reporter.
Samantha J. Gross is a politics and policy reporter for the Miami Herald. Before she moved to the Sunshine State, she covered breaking news at the Boston Globe and the Dallas Morning News.