When you got stopped for Possession of Cannabis, did the officer say he smelled the odor of cannabis?
Hemp is a type of cannabis that’s legal in Florida. It smells just like illegal cannabis. An officer can’t tell the difference just by smell, so the state will probably have a very hard time proving a cannabis possession case against you.
Here’s why: hemp, marijuana, and cannabis have different legal meanings under Florida law. Back in 1995 when I started working as a criminal defense attorney, the legal system used the terms “cannabis”,” marijuana” and “weed” interchangeably. Today, inexperienced officers and attorneys still lump these terms together, but they’re not the same, and hemp isn’t illegal.
What to Do If Charged: Plead Not Guilty and Hire an Attorney
Some clients come to my office after picking up a cannabis possession charge and tell me they’re guilty. They worry that if they don’t plea, they’ll waste the court’s time or make the judge mad.
Guilty or not, I advise my cannabis possession clients that I’m going to enter a Not Guilty plea on their behalf.
I do that because a Not Guilty plea is entered in 99% of all cases where the accused hires competent counsel. It can literally mean what it says: that the accused is not guilty. A Not Guilty plea is also used when the case is very new and an attorney hasn’t had time to investigate the case yet. My favorite reason for entering a Not Guilty plea is when defendant is guilty, but the State cannot prove guilt beyond a reasonable doubt. The rest of the article will focus on that scenario.
The Difference Between Legal Hemp and Illegal Cannabis Can’t Be Seen or Sniffed
For criminal law purposes, the difference between legal and illegal is the amount of THC. The following table breaks that down and shows the corresponding Florida Statute:
| Substance | Statute | THC Content |
| Hemp | 581.217 (3)(d) | ≤ .3 |
| Marijuana | 381.986 (e) (f) | ≤ .8 |
| Cannabis | 893.03 (1)(c)(7) | > .8 |
Hemp, marijuana and cannabis are very similar because they all come from the plant Cannabis sativa L. Based on appearance or smell, it’s virtually impossible to tell the difference between completely legal hemp and illegal cannabis.
State attorneys and law enforcement agencies know that hemp and cannabis can’t be distinguished just by smell or sight, no matter how experienced the cop.
They also know that field tests and K9s alert only if there’s THC – not how much THC. How much THC is the single factor that determines if it’s legal or not.
So state attorneys and law enforcement agencies have warned their employees that they won’t be able to prosecute cannabis cases without proof of THC amount.
The Evolution of The Sniff Test
Before the legalization of hemp, an officer could testify that a “green leafy substance” was cannabis based only on his training and experience, without a scientific test result from FDLE.
But changes in the law have taken away law enforcement’s abilities to identify cannabis the way they used to by sight and smell. They still haven’t come up with a simple way to fix their THC proof problems on every single cannabis possession case in the state of Florida.
“But the Officer Told Me It Was No Big Deal”
Why would the officer bother to make the arrest or give a citation if it was no big thing? The reality is that no matter how insignificant the officer makes it sound by talking about fines and dismissals, a cannabis possession charge is a big deal. In addition to the possibility of prison, jail, probation, counseling, community service and monetary fines, possession of a controlled substance like illegal cannabis in Florida carries a 1-year driver’s license revocation upon conviction.
Some questionable officers will still make an arrest even when they know the state can’t prove it. They’re hoping that defendants are uneducated and they’re hoping people will just give up and “save money” on hiring a lawyer in exchange for a small fine or probation.
Don’t let that happen to you. Since the state can’t prove it’s illegal, it makes no sense to plead guilty to a cannabis possession charge.
