Pubdate: Fri, 12 Jul 2019
Source: Tampa Bay Times (FL)
Copyright: 2019 St. Petersburg Times
Author: Kathryn Varn


A law that took effect July 1 legalized hemp and CBD products
containing traces of THC, the compound in marijuana that gets you
high. But field tests and crime labs haven't caught up.

Texas hemp enterpreneur Zachary Miller, interviewed here by a
television reporter, was arrested in Okaloosa County after products
found in his car tested positive for THC. THC is illegal in Florida
unless prescribed by a doctor for medical use but trace amounts are
allowed in now-legal hemp products. [Courtesy of Zachary Miller]

Zachary Miller was napping in the car as he rode west through the
Florida Panhandle, back to Texas and his cannabis business.

He was coming from a wellness expo in Miami where he had shown off
waxes, oils and cigars made from hemp, a relative of marijuana. He
awoke when his associate, driving the car, told him they were being
pulled over.

Okaloosa County sheriff's deputies started to search the car but
Miller didn't think he had anything to worry about. His products, he
said, contained mostly CBD -- the compound found in hemp and marijuana
that doesn't get you high and was declared legal under a federal hemp
bill passed late last year.

But when deputies tested some of it, the results showed the presence
of THC -- the stuff that gets you high and is illegal in Florida
unless recommended by a doctor for medical use.

A hemp bill that took effect July 1 removes the plant from the list of
substances that are deemed illegal because of their potential for
abuse. But many hemp-derived products still have trace amounts of THC
so the bill language allows for them to contain .3 percent or less of

The trouble is that law enforcement agencies and prosecutors can test
for the presence of THC but not for how much of it there is. The
equipment they use in the field and in the lab produces the same
results whether a test sample has high levels of THC or a minuscule

Adding greater precision to the process will take time and money.

Meantime, Florida may see a "defacto legalization" of marijuana, "just 
because of the resources that are going to be involved in proving the 
substances," said Philip Archer, the top prosecutor for Brevard and 
Seminole counties and president of the Florida Prosecuting Attorneys 

Pursuing marijuana cases, in other words, may become more trouble than
it's worth.

Some agencies, faced with inconclusive test results on a CBD product,
may just let people go if they find it on them. Others may arrest
people who have committed no crime.

"It's going to be ugly," said Pinellas County Sheriff Bob Gualtieri.
"This has not been thought through."

The science behind CBD's potential health benefits is scarce, but
advocates like Miller swear by it for pain relief and healing.

Since Miller started his cannabis business a couple years ago, he said
he's seen his product users -- patients, as he calls them --
experience fewer seizures and less pain, and in one case, stop
chemotherapy treatment for cancer.

He and his brother, a Navy veteran, own Texas Remedy Hemp, traveling
to spread the word about CBD and partnering with wellness
professionals like massage therapists and chiropractors.

"When I started providing, I saw it as a medicine," Miller told the
Tampa Bay Times, "not a way to make a quick dollar."

But the industry also has serious financial potential. Analysts with
New Frontier Data, a cannabis industry information firm, predict $1.3
billion in CBD sales by 2022.

Some states launched lucrative growing operations under a 2014 federal
bill that allowed pilot hemp farms to open under government oversight.
At the end of last year, federal lawmakers passed a new version of the
Farm Bill that legalized hemp at the federal level.

State lawmakers got to work during the spring legislative session on a
bill that would do the same in Florida. But some entrepreneurs took a
calculated risk and dove into the murky water between state and
federal law.

That explains why CBD stores have popped up all over the state, and
why coffee shops and smoothie bars are now offering CBD add-ins.

Law enforcement agencies contacted in the Tampa Bay area said they are
still trying to interpret the law or waiting for direction from the
state. They acknowledged that their field tests are limited.

At least one company, Nevada-based defense contractor Syndicate
Alliance, is in the process of preparing a field test that can tell
the difference between marijuana and hemp, said co-founder and chief
operating officer John Waldheim.

The company has talked to more than a dozen police departments about
the technology and anticipates distributing about 30,000 kits before
the end of August, Waldheim said.

"It's like an overnight sensation," he said.

The chemistry used in the kits is promising, said Reta Newman,
director of the Pinellas County Forensic Laboratory, but Newman won't
endorse them without more proof of their reliability.

What's more, she said, field tests can only provide probable cause --
the low bar of evidence police need to make an arrest. Making a case
in court requires test results from a lab like hers.

Newman, president of an informal association of Florida crime lab
directors, said she is working on a new method of testing cannabis
that wouldn't require much extra equipment or more people. The method
would determine a test sample's range of THC content, more or less
than 1 percent, rather than a precise figure. But that's enough to
work in nearly all potential criminal cases involving cannabis, Newman

She hopes to roll it out in the next three months.

"The cases that come in in that time period are going to be in a
holding pattern," Newman said, "but at least we have something."

Pinellas has its own lab, but most agencies in Florida -- including
those in Hillsborough, Pasco and Hernando -- generally send their
samples to the Florida Department of Law Enforcement for testing. FDLE
can't test for THC amount, either, and conveyed that information to
lawmakers as the bill was moving through the Legislature, said
spokeswoman Angela Starke.

"This type of testing will require significant additional department
resources," Starke said. "The department is currently evaluating the

Sheriff Gualtieri, legislative chairman of the Florida Sheriffs
Association, said he, too, expressed concerns about testing to lawmakers.

But bill sponsor Sen. Rob Bradley, R-Fleming Island, told the Times in
an email that during the session, the testing issue "certainly wasn't
a point of emphasis from any interested party."

"If necessary, the issue can be addressed either by rule or during the
next legislative session," Bradley said. "This is an emerging
industry. Any kinks will be worked out as industry regulations evolve."

Starke also pointed out that law enforcement agencies can send their
samples to private labs, but at a cost. About 15 agencies have started
accounts with EVIO Labs, a company with locations in Gainesville and
Fort Lauderdale, said co-founder and president Chris Martinez. The lab
charges about $50 to $70 per sample.

Ultimately, state attorneys will decide how much evidence is needed to
pursue a marijuana case and whether it's worth the time and money,
said Archer, with the prosecuting attorney's association.

In Texas, several prosecutors have said they would stop pursuing some
or all low-level marijuana charges. No prosecutors in Florida appear
to have taken this step.

In Hillsborough, State Attorney Andrew Warren said in a statement to
the Times that his office will continue to send low-level marijuana
offenses to arrest diversion programs and concentrate its efforts
instead on drug trafficking and violent crimes.

In Pinellas and Pasco, State Attorney Bernie McCabe said he will
decide whether to prosecute on a case-by-basis.

"We'll just have to see," McCabe said. "I don't have an easy answer,
and obviously the statute doesn't provide me an answer."

Miller was pulled over in the Panhandle about a week before Florida's
hemp law took effect. CBD was still technically illegal statewide.

Still, the report of his arrest focused on THC that Miller said was
present in only trace amounts. The report refers to "prepackaged
cigars which contained suspected marijuana" and "small prepackaged
containers which contained suspected THC extract."

Deputies also found a vape pen with "suspected THC oil" in the center
console that Miller said didn't belong to him -- and methamphetamine
in a bag that belonged to a third person in the car. Miller faces no
charges in connection with the meth discovery.

The deputy on the scene detected the odor of a burnt cigar that
smelled like marijuana, said Okaloosa Sheriff's Office Capt. Dave Allen.

Allen told the Times that some of the products found in the search
showed no signs of THC, adding to the deputy's suspicion that the
others did contain the illegal compound.

Miller acknowledged that he didn't know CBD was still illegal in
Florida when he was pulled over. But any implication that his products
contained more than the THC threshold is wrong, he said. He plans to
fight the charges.

“If somebody wants to call me a criminal for giving medicine to
people, so be it,” he said.

But Sheriff Gualtieri said it's generally accepted that CBD plant
material does have an odor similar to THC plant material.

That's part of the problem law enforcement faces.

"It's not different at all," Gualtieri said. "I wish it was pink. That
would make it easier."
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