Don’t leave your Florida medical marijuana card at home. You may need it if pulled over by police when traveling, even with legally purchased pot from a state-licensed dispensary.
Drivers who have a state medical marijuana card may be a bit safer from trouble with the law, as long as they are not under the influence of marijuana, alcohol or other drugs while driving. But if there’s any indication that a driver may be “high,” the police could take action.
Florida’s legalization of hemp in July added a challenge for law enforcement on figuring out when to arrest a driver or seize a substance, because hemp can smell and look like cannabis, and also can be smoked. Police in Broward County use an on-the-road field test that can distinguish cannabis from hemp, but Palm Beach and Miami-Dade are not — opting to confiscate the substance and have it tested in a certified lab.
Here is what drivers need to know to protect themselves:
Am I safe to drive with cannabis if I have a Florida medical marijuana card?
If stopped with a cannabis product in their car, medical marijuana patients must be able to produce a valid medical marijuana card. Refusing to show the card to police is a violation of the law —a second-degree misdemeanor.
If charged with a violation, know that you can’t be convicted if you can produce a Florida medical marijuana registry card that was valid at time of the charge, either before or at the time of the court appearance.
Winter residents should know that medical marijuana cards from other states are not accepted by Florida, so they should consider visiting a medical marijuana-licensed doctor or clinic to obtain a Florida card.
The consumer also must carry proof the medical marijuana was purchased from a Florida-licensed dispensary such as Trulieve or Curaleaf.
Florida law requires that patients keep the medical marijuana in the original packaging, as well as have the dispensary insert with product information and the recommended dosage.
Then if stopped by the police when you have a cannabis or hemp product in your car, just act normal. Acting nervous won’t help your cause, experts say.
“When transporting marijuana or hemp products and stopped for any reason by law enforcement, it’s important not to give them any reason to think you’re driving under the influence. Respond coherently, and if asked for medical marijuana card, driver’s license and registration, give it,” advises Drew Sarangoulis, a criminal lawyer for GrayRobinson law firm in Miami.
“The best practice is to keep the medical marijuana card on you at all times, especially when in possession [of cannabis],” he said.
Can police tell the difference between cannabis and hemp?
When police stop a driver and observe a substance in the vehicle, the officer “has no ability to determine if it’s hemp or marijuana. They both look and smell the same,” said Roger Brown, founder of ACS Laboratory near Tampa, which conducts potency and other tests for about 25 law enforcement agencies in the state.
That’s because hemp and cannabis are both derived from the same plant.
Legal hemp should have under 0.3 percent THC or tetrahydrocannabinol, which means it is not a controlled substance. But anything higher is illegal. Cannabis typically contains between 2 percent and 30 percent THC, the chemical element that gives users a “high.”
If you are stopped by police while illegally in possession of cannabis, “don’t make any statements to police indicating the substance in question is marijuana,” Sarangoulis warns. Regardless, police may decide to seize the product for testing, if they have probable cause to believe you are under the influence — and don’t object to that, he recommends.
Can police search my car?
Police can still find what they call “probable cause” to search a vehicle or even arrest a driver who appears to be “under the influence” of marijuana.
“Even if legitimately transporting or in legal possession of hemp, and the police have probable cause because of outside circumstances — you’re nervous, you have cash on hand — they can still seize that hemp to determine if it is indeed hemp,” Sarangoulis said.
Most South Florida law enforcement agencies say they are using an “odor-plus standard” to determine probable cause to search a vehicle. This approach requires officers to obtain evidence beyond what seems like the scent of marijuana.
But that other evidence is wide-ranging, including: a criminal record; police information about illegal activity; admission of possession of a controlled substance; conflicting statements, nervousness and lack of eye contact; destruction of the substance; drug paraphernalia, such as baggies, pipes, heat sealers, or scale; money in rubber-banded “quick-count bundles; or signs of impairment such as an irregular driving pattern, bloodshot or watery eyes or slurred speech, according to legal briefings by state attorney’s offices in Broward and Miami-Dade counties.
The Palm Beach Sheriff’s Office notes that even if marijuana is detected by a police dog trained to alert to THC, police need an additional reason to conduct a search.
How will police test the product or substance I’m carrying in my car?
Police in Broward are using a new THC/hemp test kit from Zurich, Switzerland, designed to distinguish between marijuana and hemp, according to Sgt. Donald Prichard, spokesman for the Broward Sheriff’s Office.
When confiscated, a sample is only sent to a lab prior to a trial, or if the offense is trafficking in marijuana, Prichard said.
The Palm Beach Sheriff’s Office and other law enforcement agencies in the county deal don’t use a field test, but may send a confiscated sample to a lab.
“We will not be able to prosecute any marijuana or THC oil cases without a test from an accredited lab indicating that the THC content is over 0.3 percent,” says Elizabeth Neto, assistant state’s attorney in Palm Beach County, in a July 1 memo.
Miami-Dade State Attorney Katherine Fernandez Rundle has instructed law enforcement officers to seize suspected marijuana for a Drug Enforcement Administration-licensed lab test. “The State Attorney’s Office will need a laboratory test result that indicates that, in fact, the substance is illegal cannabis — as opposed to hemp — before filing formal charges in a case,” she said in an Aug. 5 memo.
What if I’m carrying CBD oil or another hemp product in my car?
While hemp became legal in Florida as of July 1, the state Department of Agriculture is still working on regulations on the testing standards and sale of cannabidiol/hemp products.
Lab operator Brown said he would never drive with a CBD/hemp product without its “certificate of analysis,” which can be downloaded from the manufacturer or from his lab site at ACSLabCannabis.com. Scan the QR code — the bar code on product or package — and the certificate for the product can be pulled up on your smart phone, he said.
The document will show the potency of the product, which should be under 0.3 percent, and provide other testing information.
“The certificate of an analysis allows you to provide information to the police officer,” he said. It also may serve as evidence if the police still confiscates the product or arrests you.