A Year Later: Miami-Dade County State Attorney’s Office and Marijuana Policy

In July 2019, hemp became legal to possess in Florida. Hemp, to provide a quick primer on the plant, is the part of cannabis plants that contain no psychoactive elements. It actually is allowed to consist of no more than 0.3 percent THC, which is the chemical responsible for producing psychoactive effects in marijuana.

To complicate matters, recreational marijuana remains illegal in Florida. Activists hoped to put a referendum on the ballot in the November 2020 general election, but the status quo remained. Those with a medical marijuana card may use the product in a private location. Once hemp was legalized, though, police and sheriff’s departments across the state grappled with how officers and deputies could enforce the existing marijuana laws.

The Miami-Dade County State Attorney’s Office followed the lead of several other departments and instructed officers not to make misdemeanor arrests for marijuana. In other words, possession of 20 grams or less of marijuana has essentially been decriminalized in Miami.

The reason for this policy shift among Florida law enforcement departments has to do with the similarities between hemp and marijuana. Before, officers were able to obtain reasonable suspicion that an individual was using marijuana if the substance was out in plain view or the telltale odor or the plant was present. From there, officers have the authority to search one’s car or person. Because there is no effective method to visually distinguish hemp from marijuana by the naked eye, any substances seized must be sent to a lab in order to affirm that it contains more than 0.3 percent THC.

Another layer of complexity here for law enforcement officials is their inability to gather reasonable suspicion that criminal activity is afoot when they allegedly see or smell marijuana. Any evidence they seize during a search might be inadmissible in court because an officer did not have a lawful basis for the search. Those conditions combined with the costs of sending a sample to a testing lab led to the guidance from the State Attorney’s Office.

Smell Plus Other Factors

So, is everyone in possession of marijuana in Miami off the hook? Not exactly. Some officers may be empowered to make arrests for possession if they see or smell the substance and observe other clear signs of criminal activity (such as visible impairment). Possession of more than 20 grams (a felony amount) is still an arrestable offense. Also, smoking medical marijuana is prohibited on Miami beaches and public parks.

Conclusion

Few law firms in and around Miami-Dade County are as up-to-date and knowledgeable about hemp and marijuana laws than Petkovich Law Firm. If you or someone you know has been arrested for any drug offenses, ranging from simple possession to trafficking, we would be more than happy to represent you. Give us a call today at 305-358-8003 to set up a consultation with our legal team.