Oakland Park resident Jimmy Hewett thought he could smoke Spice even though he was on probation and subject to random drug testing.
He thought wrong.
Hewett is one of the first in Broward County to get in trouble with the court for smoking Spice, a synthetic marijuana – but many people on probation are smoking fake weed and not getting caught.
A judge issued a warrant for his arrest on June 12 after a lab in Richmond, Va., confirmed that Hewett had tested positive for Spice.
On Tuesday, Hewett will answer to the court for violating probation.
Because synthetic marijuana is openly sold at gas stations and convenience stores, Hewett says he didn’t think he was doing anything wrong.
That’s the argument his attorney, Andrew Smallman, intends to make.
“For people on probation, in their minds this stuff would be ideal for them to use as a substitute for illegal drugs,” Smallman said. “They can buy it at the store and it’s out in the open. It’s just like buying a cigar or a cigarette.”
Broward Public Defender Howard Finkelstein said he hasn’t yet seen anyone in Broward charged with possession of Spice. “But I’m sure they’re coming.”
Finkelstein said he would be watching what happens in the Hewett case.
“If I go to 7-Eleven to buy Spice and it’s openly sold and it’s not marketed as mind-altering, why is it I have violated my probation?” Finkelstein said. “The courts are trying to adapt to changes to chemical compounds that are being sold. You have to be specific. You can’t just say you can’t use mind-altering drugs.”
Hewett was arrested in late 2010 for having Temazepam pills in his pocket without proof of a prescription – a third-degree felony with a maximum five-year sentence. The judge gave him a break in December and placed him on probation for two years.
If Hewett is found guilty of violating probation, the court could sentence him to five years in prison, according to his attorney.
Smallman said he hopes to get the warrant dismissed.
“You have to violate probation willfully and substantially,” Smallman said. “I have a hard time seeing how it was willful or substantial if you can buy it from the behind the counter at 7-Eleven.”
Smallman also wants proof that the chemicals found in Hewett’s drug test were on the list of banned compounds.
As soon as federal and state officials outlaw specific compounds used to make synthetic marijuana, new ones show up in stores, tweaked by chemists trying to stay one step ahead of the law.
Even with sophisticated testing, toxicologists are having a tough time detecting those new compounds.
What’s more, the tests are expensive – $200 to $300 – and the state can’t afford to test everyone on probation or parole, experts say.
“Probation officers aren’t going to [routinely] test for this,” said Dr. Bruce Goldberger, professor and director of toxicology at the University of Florida.
That’s what Spice users are counting on.
Still, with cities in South Florida lining up to ban synthetic marijuana and bath salts, tests are being conducted among high-risk users, said Jim Hall, director of the Center for the Study and Prevention of Substance Abuse at Nova Southeastern University in Davie.
“When someone is admitted to probation they are instructed on the court orders,” said Jo Ellyn Rackleff, a spokeswoman for the Florida Department of Corrections. “One of the standard court orders is that they abide by all laws. And both bath salts and synthetic marijuana are illegal. People on probation know they are not supposed to use mind-altering substances.”
Hewett says he has learned his lesson.
“The older stuff was more like marijuana,” he said. “The newer stuff makes me sick. I can’t take this stuff anymore because I’m on probation.”