There’s a new/old concept coming into play since the passage of the Hemp bill in Florida. The concept is called SMELL PLUS. In short what it means is to articulate a search of the vehicle is no longer enough to have just the order of marijuana emanating from the vehicle to justify the search. You need the smell of marijuana along with something else to justify the further detention in search of the vehicle. That something else has to show there is some evidence of criminal wrongdoing. A quick example of a plus is the smell of marijuana + paraphernalia in plain view when someone does not have a medical marijuana card. There can be many forms of plus.
Under Fla. State. Sec 581.217, hemp is defined as the plant cannabis sativa L. and any part of the plant including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, assets, salts, that does not exceed .3 tetrahydrocannabinol concentration.
Under Fla. Stat. sec. 381.986 medical marijuana legal in the State of Florida. Further, under the statute, the only difference in legal medical marijuana and illegal marijuana is the percentage of tetrahydrocannabinol and cannabidiol. Medically legal marijuana is defined under Fla. Stat. sec. 381.986 (1)(e) and (f) as:
(e) “Low-THC cannabis” means a plant of the genus Cannabis, the dried
flowers of which contain 0.8 percent or less of tetrahydrocannabinol and more
than 10 percent of cannabidiol weight for weight; the seeds thereof; the resin
extracted from any part of such plant; or any compound, manufacture, salt,
derivative, mixture, or preparation of such plant or its seeds or resin that is
dispensed only from a dispensing organization.
(f) “Medical cannabis” means all parts of any plant of the genus Cannabis,
whether growing or not; the seeds thereof; the resin extracted from any part of the
plant; and every compound, manufacture, sale, derivative, mixture, or preparation
of the plant or its seeds or resin that is dispensed only from a dispensing
organization for medical use by an eligible patient as defined in s. 499.0295.
Medical marijuana can only be distinguished from other marijuana testing the potency. Likewise the determination of hemp versus marijuana containing more than .3% tetrahydrocannabinol can only be done through testing.
What’s Happening Now
The state attorney’s office and Broward and Martin Counties have put forth memos on why they will not prosecute unless there is the smell plus evidence of wrongdoing. Most South Florida jurisdictions are following suit.
What I anticipate seeing in the future are less cases filed and pending cases result a lot quicker.
We talked about all the vehicles you can get a DUI on in this post.
Florida citizens are back at it. In this article a Florida man was arrested after he struck an officer’s car while on his lawnmower.
They don’t have UBER for lawnmowers but I think he should have used Angie’s list.
We predicted it months ago. A Judge in Tallahassee ruled the ban on smoking prescribed marijuana unconstitutional last May. This created a conflict in the law. On May 18, Gov. Ron DeSantis signed into legislation to repeal the ban on smoking medial marijuana.
So What Really Happened
Gov. DeSantis filed a motion to Dismiss the State’s Appeal of the State’s appeal of the Tallahassee Order. Along with the order, the governor signed legislation that make smoking an acceptable form of a “marijuana delivery device”.
Patients can now receive 2.5 ounces of whole flower cannabis every 35 days. The changes may take a bit of time to implement.
Key Issues for the courts
Prior to the change in the legislature, the odor of marijuana in a vehicle gave rise to probable cause for a search. Since medical marijuana was passed, we have argued that the odor of Raw marijuana was not Probable Cause until it was determined that the Defendant didn’t have a prescription. The courts will now have to look at whether the odor of burnt marijuana needs a similar inquiry before a search is legal. We will see.
Earlier in the year we discussed that license plate readers were approved in Wellington. According to WPBF the readers are now operational in Wellington.
License Plate Cameras?
License plate cameras are stationary cameras positioned throughout the city that constantly read license plates. They check for bad registrations, possible license issues, and if cars are stolen. This will then alert PBSO as to the vehicle’s issues.
How to prevent getting Pulled Over
Obviously, keep your tag up to date. Do not switch your tag with another vehicle. Also, if you are driving your registered car and your license is suspended, it may subject you to being pulled over. If you watch this video, you can see how to avoid being pulled over as a result of driving through an area with license plate reader.
The New Jersey Supreme court rules that 20,000 DWI convictions could be tossed according to this article. It appears that Sgt. Marc Dennis mishandled the instrument that reads Blood Alcohol Content. In addition, the Sergeant was charged with records tampering. The New Jersey supreme court held that 20,667 convictions for DWI could be challenged and notice must go out to anyone subjected to this error.
It has happened in Florida
In Broward county in 2009 it was discovered that one of the inspectors that were testing the initializer 8000, in an improper manner. Specifically instead of ingesting alcohol and giving a sample, the inspector simply put alcohol on her lips in order to conduct the test. The procedure was did not conform to FDLE and DHSMV administrative rules. Ultimately several DUI’s were dismissed as a result.
Why challenge a DUI
Many people think they cannot challenge the initializer 8000 in court. We have given now 20,000 different reasons why you should. A good DUI attorney will look at outside forces that may have affected your ability to perform field sobriety exercises such as weather conditions, the area where the exercises were performed, and whether the officers conducted the field sobriety exercises in an appropriate manner. Lastly, an experienced DUI attorney will look at attacking the reliability of the breath measuring device called the Initializer 8000.
The police have a strict procedure to follow when conducting a DUI investigation. Even minor violations of procedure can have a great impact on your case. As such, there are many different ways a DUI case can result other than a plea of guilty to DUI.
Way back when, June 21, 2017, I wrote about an new bill (Senate Bill 118) that would help people on two fronts, getting mugshots removed, and administratively sealing criminal records that were dismissed. The law was supposed to be enacted on July 1, 2018. After July 1, 2018 I went in search of Florida Statute 943.0586 to help several of my clients administrative seal their record. What I found was….Nothing.
Florida Statute 943.0568 was not enacted
Despite being signed into law by our governor, the bill was only adapted in part. SB 118 was comprised of two separate portions introduced by Senator Brandes and Senator Stuebe that complimented each other. The first portion allowed for the removal of mug shots upon request by third party publishers such as mugshots.com. The second portion allowed the clerk to seal a case which was not filed or dismissed prior to trial. The second portion would have allowed the clerk of court. Confusion arose when Governor Rick Scott passed this bill which was supposed to take effect on July 1, 2018, but then we learned the second portion was contingent upon Senator Brandis’ SB 450 or its counterpart SB 369 passing as well. But since SB 450 or 369 did not pass, the 943.0586 statute the we previously reported on our blog, did not make it into law.
Removal of Mugshots
Florida Statute section 901.43 is the statute controlling the mug shots. It makes it illegal to solicit or accept a fee or other form of payment to remove the booking photographs. The person whose arrest booking photograph was published or otherwise disseminated in the publication or electronic medium may bring a civil action to enjoin the continued publication or dissemination of the photograph if the photograph is not removed within 10 calendar days after receipt of the written request for removal. The court may impose a civil penalty of $1,000 per day for noncompliance
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Inside, a bit about our family Halloween traditions, free offers, the rise of our personal injury practice, and other fun tidbits.
Under Florida’s implied consent statute, you have given consent to submit to a breath, urine, or blood test in the state of Florida when you get your driver’s license. The police can only ask for one of these tests incident to a lawful arrest. The most common test administered is the breath test. However, when someone gives a sample under the legal limit, the police typically will ask for a urine sample.
A request for a Urine Sample may not be legal
Under Florida statute316.1392(1)(b) a urine test must be incidental to a lawful arrest and who was in actual physical control of the motor vehicle while under the influence of chemical or controlled substances. In order for law enforcement to ask for a urine sample, there must be some indication a person is under the influence of a chemical or controlled substance. Simply blowing under the legal limit does not indicate that someone is under the influence of the chemical or controlled substance.
There must be evidence of chemical or controlled substance use
Local courts have held merely blowing under the influence is not enough. In one particular case here in Palm Beach County, a person was arrested for DUI when the officer pulled the defendant over after driving at a high rate of speed. The officer noticed a slight odor of alcohol on the defendant and smelled a stale odor of burnt marijuana. The officer’s report only mention alcohol as a cause of impairment and did not include use of marijuana as an indicator of impairment. However, after the person blew under the legal limit urine test was requested. This defendants attorney successfully argued since there was no suspicion that the impairment was due to a chemical or controlled substance there was no reason to request the urine sample. As such, the sample was suppressed.
What this means
What this means for you is that even though you may feel there is no defense for a breath or urine sample that put you over the legal limit, there actually may be one.
This is a commonly asked question by my clients. When a Defendant has to do Community Service Hours for Probation, for Pre-trial Intervention Program, or for a Deferred Prosecution Agreement they have to do them where the Court will accept them.
Its not enough that a company that offer hours helps the community, it has to be with a designate non-profit organization. The problem lies when someone thinks they have done community service hours for a non-profit organization, and it is not.
Take a look at these approved non-profit organizations to do your community services hours.
Where to Do Community Service Hours