The recent change in the Florida hemp laws has created a problem for law enforcement officers in the state when it comes to investigating a potential DUI with respect to marijuana. Hemp products were made legal with state adoption of the federal Farm Bill of 2018, including the Delta 8 and 10 THC varieties that are considered non-intoxicating by the new law. The products can only have a controlled infused Delta 9 THC composition of 0.03%. In addition, the actual organic product looks and smells exactly like the illegal uncontrolled Delta 9 THC version that can produce a psychoactive response. The legal problem now is that smell similarity is no longer reasonable suspicion, and positive tests do constitute impairment.
Understanding reasonable suspicion
Many drivers do not understand that highway patrol officers in Florida must have “reasonable suspicion” before they can even request to search a vehicle. When they search they are looking for “probable cause” to arrest the driver for DUI or a passenger if they are found to have drugs. Failure to establish reasonable suspicion is a common element of criminal defense in many drug crimes cases in Florida.
The problem with smell as reasonable suspicion
The smell of marijuana until now has been considered by the court as valid reasonable suspicion, an acceptance that has continued even after the passage of the 2018 Farm Bill. However, Florida state court authorities now say that smell does not apply in drug crimes arrests because both possession of industrial hemp is legal and smoking industrial hemp while driving is not a DUI chargeable offense.
Given that a positive blood test can be the basis for a marijuana DUI in Florida, many requests for blood tests are based on an officer’s impression that he or she can smell cannabis. With the new law in place, this is no longer accepted as reasonable suspicion by the court.