JACK CAMPBELL ‘sete Fama SEG 2500 STATE ATTORNEY July 30,2019 Dear Law Enforcement Partners, | have just returned from our annual Florida Prosecuting Attorney's Summer Conference where our boatd discussed many significant issues. One of the most pressing is tha of Florida's new hemp law and how it impacts other prosecutions. ‘This leter does NOT address medical marijuana, Tagree thatthe issues often interelate, but for the sake of elarity [only addres the hemp issue here ‘Both Congress and the Florida Legislature have now passed laws making hemp, CBD, and other derivatives with 3 percent or less of THC, lawful. The specific definition is: “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing oF not, tht has 2 total delta-9 tetrahydrocannabinol concentration that does not exceed (0.3 percent on a dry-weight basis." Florida Statute §S81.217 (2019), Previously, 1 was present at a meeting and demonstration at the Florida Department of Agriculture on July 8, 2019 where a vendor, a Navy Seal, showed a possible presumptive test that ‘would be able o differentiate these items. They stated they were working with AVO labs and the [Broward State Attomey’s Office to validate the est. T mentioned thatthe tests were of no use unless they were validated and that we would need expert testimony to be able to establish their scientific reliability in court, ‘AL the conference, I met with the Broward State Attorney's team and am sory to report that that they were hoping that AVO was going to be able to both validate and provide the expert testimony necessary. However, they have withdrawn after it was discovered they did not have @ DEA license allowing them 9 even possess marijuana let alone test it, Hence, I would not recommend you invest in those tests. The eurent status is that we are hoping to get a presumptive ‘est chat will work in Florida, but we don’t have it yet. We resommend keoping Your current presumptive tests though as they wil likely be needed even when the new additional presumpive testi retained. In addition to presumptive or roadside tests, we also will ned full testing for tral, The Attomey General’s Chief of Staff and General Counsel have explained the FDLE is currently looking at two possible courses to allow quantification testing of samples, Previously, we would need only qualitative testing as all forms of the cannabis plants were illegal. Now, cannabis and its extracts or derivatives ae legal iit has THC concentations below 3%‘The current posture is tht no public or private lab in Florida can do this dispositive testing. ‘The Florida Department of Agriculture is unable to do so, and while there ate some private labs that may want to get this business, they are not online as of now, The traditional testimony of officer's training and experience is of no use. These legal products will tet positive for THC with ‘he current presumptive test kits in use, The drug sniffing Ks that have been trained on marijuana will ikely alert to these products, s they ae rained to detect any amountof THC. Hemp products Took and smell exactly like marijuana products ‘Some municipal labs in larger jurisdictions ae also trying 1 invest in technology that will cither allow fll or partial quantification. If FDLE does so, or your agency is willing to have the samples privately tested, we will consider filing these cases, I would suggest that if you are contemplating using a non-governmental lab to do your testing, please conrult with ws, ‘The cost of testing may be far less than what it will cost for us to secure the exper testimony necessary 10 ‘comply with Florida evidence rules. Furthermore, the lab you are using may not be capable of ‘meeting the Daubert predicate, and if so, the evidence will be excluded. Daubert v, Merrell Dow Pharm. Ine., $09 US. $79, $85, 113 8. C1, 2786, 2792, 125 L. Ed. 2d 469 (1993) My current hope is thatthe Florida Legislature, Florida Department of Agriculture, and the Florida Department of Law Enforcemtent will work to resolve this problem. Iti clear that cannabis is stil illegal, and T intend to enforce the laws as written. While this has created a practical frustration it doesnot appear tobe insurmountable, Of greater concerms, are the associated issues we will face due to this status. Much ofthe search and seizure law hinges on cither the officer's or K-9°s ability to smell. This seems to now be in significant doubt. I would suggest that your officers and deputies no longer rely purely on their identification of believed cannabis. While it used to allow further detentions and seizures, ‘ease law ftom other jurisdictions suggest it will not be sufficient in the coming months and years. Finally, pethaps the most egregious oversiteis that of juvenile law. At present, there is no additional restrietion on children possessing CBD or Hemp. It is my understanding that some shops are now making pre-olled hemp cigarettes and are selling hemap gummies, ‘The irony that children cannot lawfully possess tobacco ut ean now have hemp candies and cigarettes is astounding. I again hope thatthe Florida Legislature will addres this problem, ‘To conclude, this Office will no longer be charging people with possession of cannabis absent @ confession to what the substance is or testing by a lab that can meet the evidentiary standards I have laid out. We will also not be approving search warrants or other legal process based on traditional predicates where officers, or their dogs and presumptive tests, fel a substance is cannabis. I know this is significant change in the law and would caution you in making arests ‘when these issues are present, ‘Lam confident we ean work through these challenges together as we have inthe past. We will be lobbying the legislature to fund presumptive testing and final analytical testing, and to regulate possession by minors. Please let me know if you have any questions or concerns,