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In Florida, a haze builds around pot law enforcement as technology catches up to policy

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]
Published Jul. 12

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.

Miller, 36, now faces three felony drug charges. His case highlights a quandary for the state of Florida: Legalization is outpacing law enforcement technology.

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 it.

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 amount.

PREVIOUS COVERAGE: How CBD blew up faster than Florida could regulate it

PREVIOUS COVERAGE: Florida's first hemp program passed by Legislature, heads to governor for signature

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 Association.

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.

PREVIOUS COVERAGE: I took a CBD bong hit before a yoga class to see if it helps with anxiety

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.

PREVIOUS COVERAGE: Is CBD legal in Florida? And other common hemp questions

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 said.

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 situation."

• • •

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.

Capt. Allen said he had "never heard nor seen of any CBD products that smell like marijuana."

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."

Staff Writer Sara DiNatale contributed to this report. Contact Kathryn Varn at kvarn@tampabay.com or (727) 893-8913. Follow @kathrynvarn.

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