How legalizing hemp accidentally helped marijuana suspects

How legalizing hemp accidentally helped marijuana suspects

Late on a Friday night in April 2018, Donte Chazz Williams drove from his home in southeast Houston to his girlfriend’s just outside the city. A block from her house, he coasted through a stop sign, drawing the attention of a Fort Bend County sheriff’s deputy.

The deputy pulled him over and said he smelled pot. Williams said he had a bit of it in the car, and, sure enough, the deputy found a small bag in the center console, according to police reports, Williams and his lawyer. The deputy arrested Williams and booked him into the local jail for possession of 2 grams of marijuana.

Williams, who was 22, posted bail the next day, but the misdemeanor drug case dragged on for more than a year as he and his lawyer negotiated his enrollment in a drug-education program. He didn’t complete the class, so when he was called before a judge two weeks ago, he worried he’d be sent back to jail.

Instead, prosecutors dropped the case, saying they could no longer prove that the pot was indeed pot.

“That’s crazy,” Williams recalled thinking. “It actually blew my mind.”

Williams thanked his lawyer. But he could also credit state and federal lawmakers, who, in a rush to expand America’s production of industrial hemp, unwittingly made it harder for law enforcement to prosecute people for possessing marijuana.

Texas prosecutors dropped pot charges against Donte Chazz Williams when they couldn’t get the evidence tested.Courtesy of Donte Chazz Williams

With the passage of new hemp-legalization laws over the past eight months, crime labs across the country have suddenly found themselves unable to prove that a leafy green plant taken from someone’s car is marijuana, rather than hemp. Marijuana looks and smells like hemp but has more THC, the chemical that makes people high.

Without the technology to determine a plant’s THC level, labs can’t provide scientific evidence for use in court. Without that help, prosecutors have to send evidence to expensive private labs that can do the tests or postpone cases until local labs develop their own tests, a process that could take months.

Rather than deal with prohibitive costs or lengthy delays, prosecutors in several states, including Texas, Florida and Ohio, are dropping low-level pot cases altogether or declining to bring new ones. Police in those states are now unsure whether their age-old pretext for searching cars ─ the smell of pot ─ is still valid. Some have been told not to make any arrests for marijuana possession, although they can issue tickets and confiscate the suspected drugs for testing later.

There is no way to determine how many cases have been imperiled by the new laws, but they number in the hundreds, perhaps thousands, law enforcement officials say.

“This is a nationwide issue,” said Duffie Stone, president of the National District Attorneys Association and a prosecutor in South Carolina, where pending marijuana cases are piling up as crime labs scramble to obtain equipment to conduct the new testing. ”This problem will exist in just about every state you talk to.”

With the spread of efforts to decriminalize marijuana, these unintended consequences have made life easier for America’s pot smokers, particularly in states that haven’t passed laws making it legal to possess small amounts of weed. Some observers have described the hemp laws as de facto decriminalization, although lawmakers insist that’s not the case.

The confusion over hemp stems from the 2018 Farm Bill, passed by Congress in December, which made hemp a legal crop to be used in the production of textiles, fabrics, paper, food and health care goods made with cannabidiol, a nonintoxicating extract known as CBD. In order to distinguish hemp from marijuana, which remains illegal under federal law, Congress defined hemp as having less than 0.3 percent of THC. The Farm Bill left it to states to pass their own laws on cultivating hemp; 47 states have done so, according to the National Conference of State Legislatures. Most of those states adopted the 0.3 percent standard.

Crime labs were not prepared for the impact.

Hemp at a farm in Springfield, Colorado.P. Solomon Banda / AP file

Before hemp was legalized, all the labs usually had to do on pot cases was conduct a relatively cheap and quick series of tests that showed whether something came from a cannabis plant. They had ways of testing for the presence of THC, but didn’t typically need them.

Now, many will have to purchase new testing equipment, hire more staff, train staff on new testing methods and get the methods approved for use in court. Some say they are weeks away; others say they won’t be able to conduct the tests on a routine basis until next year. Some labs also expect their caseloads to increase significantly. And that’s just for plant-based marijuana cases, not edibles or vaping oils. Lab officials in Texas have estimated that the total cost there could run beyond $10 million. Private labs are charging $200 to $600 per test.

In Tennessee, the state Bureau of Investigation has asked prosecutors to be selective in the pot cases they choose to pursue, and to not submit evidence from misdemeanor pot cases until labs develop new testing procedures, said David Rausch, the bureau’s director. In Ohio, Attorney General Dave Yost announced a $50,000 fund to cover the costs for police sending evidence to private labs. Several counties in Georgia said they have stopped pursuing misdemeanor marijuana charges. In Florida, prosecutors in at least four judicial circuits have told police they won’t file marijuana cases without a lab test.

“If you want to have a hemp industry, there’s no way to get around this issue,” said Phil Archer, the state attorney in Florida’s 18th Judicial Circuit. He said he has not filed any marijuana cases since Florida’s hemp law went into effect July 1. “I would say a majority of circuits are handling it in same way.”

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