Opinion Testimony in a Marijuana Case

In possession of cannabis cases, the prosecutor is required to prove that the substance possessed by the defendant is actually cannabis. In many of these cases, the substance is never sent to a crime lab or tested by the Florida Department of Law Enforcement.

Instead, the prosecutor will attempt to rely on the opinion testimony of the arresting officer that the substance is cannabis. Asking the court to exclude the opinion testimony of law enforcement is crucial in defending marijuana possession cases in county court. Your criminal defense attorney must also have experience filing and litigating Daubert motions and other types of motions to exclude this opinion testimony. 

In these cases, the arresting officer will attempt to explain why the substance smelled and looked like cannabis. Criminal defense attorneys who fight these cases often file motions to exclude any such testimony. If the testimony is excluded, then as a practical matter, the prosecutor often has no way to go forward with the prosecution. 

The attorneys at Meltzer & Bell, P.A. in Fort Lauderdale are experienced in fighting misdemeanor possession of marijuana cases throughout Broward County, FL. Call us for a free consultation to discuss your case. Call (954) 716-8538 today.


When the Daubert Standard Applies to Identifying Marijuana 

In prosecutions for the possession of marijuana, the prosecutor might ask the officer to identify the substance as cannabis. For this testimony to be admissible, the opinion and observations must be based on reliable principles and methods and the witness must apply the principles and methods appropriately. 

Whether this testimony is admissible at trial depends on the Daubert standard. The Daubert standard requires the trial court to act as a gatekeeper by making a pre-trial determination that the witness is qualified to testify to the matter in dispute. The judge must also determine whether the witness based his or her opinion on sufficient facts or data that were correctly applied to reliable principals and methods.

A criminal defense attorney can file a “Daubert” motion that seeks to exclude and limit the opinion testimony by the law enforcement officer. The “Daubert” motion is filed before trial and requires an evidentiary hearing outside the presence of the jury. In most of these motion hearings, the officer will testify about his background, training, and experience relevant to rendering an opinion in a DUI or possession of marijuana case. 

On July 1, 2013, the Florida Legislature amended Florida Statutes Sec on 90.702 and codified the federal standards for determining the admissibility of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The new standard for the admission or scientific, technical, or other specialized knowledge can be found in Section 90.702, Fla. Stat. (2014). 

In a possession of marijuana case, the criminal defense attorney can file a motion to exclude the evidence of the law enforcement officer’s ability to identify the substance of marijuana. During the hearing, the prosecutor will often attempt to elicit the following testimony: 

  • The first time the officer came into contact with cannabis (maybe high school or college); 
  • The unique characteristics of marijuana including its odor, texture, color, appearance and packaging; 
  • Training involving cannabis in the classroom and/or field training; 
  • Training on identifying marijuana at the academy, at the agency, and any continuing education courses; 
  • Experience as an instructor, and what, if any, courses he or she taught that involved cannabis; 
  • Any specialized drug detection on assignments or training; 
  •  The number of other cases involving cannabis that the officer has conducted or participated in; 
  • The number of arrests that the officer made for possession of marijuana; 
  • The policy and procedure for field testing marijuana; and 
  • The number of times the officer has substantiated his identification of suspected marijuana with a field test or by FDLE testing. 

If you were arrested for a misdemeanor charge of possession of marijuana less than 20 grams then contact an attorney experienced in fighting these cases in county court in Broward County, FL. Call (954) 716-8538 to discuss your case today.


This article was last updated on Friday, October 28, 2016.

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