Florida Criminal Defense Lawyer Blog
WHAT HAPPENED
Disney World is a magical place, however, it was hell on Earth for great-grandmother Hester Burkhalter. The 69-year-old with painful arthritis had planned the trip for two years. Because of the debilitating pain in her legs, shoulder and arms, she uses CBD oil. Fortunately, it helps her immensely.
At the Disney checkpoint outside of the Magic Kingdom, an Orange County Deputy discovered the CBD oil in her purse. She was stripped of her liberty and then hauled off to jail. Charged with felony possession, she then spent 12 hours in the pokey before finally being released on a $2,000 bond.
Unless someone has a prescription, CBD oil is still illegal in Florida if it contains THC, the main active ingredient of cannabis. In this unique case, officers claim they tested the oil and it came back positive for THC. The confusion for consumers like Burkhalter is that most people think CBD is perfectly legal since it’s sold on store shelves everywhere in the Sunshine State. Furthermore, Burkhalter’s North Carolina doctor prescribed her the oil to help with her arthritis.
Ultimately, prosecutors chose to drop the charge against the great-grand-mother. Still, significant damage was done.
ANALYSIS
This is troubling to me for many reasons. While this technically qualifies as lawful police action, I believe officers didn’t have to make the arrest. If they’re determined to make drug arrests, I think their resources are better spent focusing on deadly drugs like heroin and fentanyl. Discretion is something that law enforcement use daily. They could and should have taken a pass on this one. It’ll be a short time before legislators fix this problem in the law. Until then, cops should decide whether this is really the position they want to take.
Furthermore, it’s difficult for law enforcement to justify the arrest of this little ol’ lady when they turn a blinds eye to the numerous gas stations, drug stores and health food stores, for example, that are openly selling it to the public without consequence. Florida has no problem with enjoying tax revenues from the sale of those items, yet will commence with felony criminal prosecution against those who are merely in possession.
LEGAL CHALLENGES
I, along with many other South Florida criminal defense attorneys, are in the process of zealously challenging these types of cases. We are seeing success in various courtrooms when we assert that these cases should legally be charged as misdemeanors as opposed to felonies. That’s for another article. If interested in hearing the details of my strategy, feel free to contact me at Mark@EiglarshLaw.com or (Miami) 305.674.0003 or (Broward) 954.500.0003.