Marijuana vs. Hemp and the Difficulties of Prosecution

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If you have been paying attention to local news lately, you will have noticed that some large jurisdictions like Gwinnett and Cobb have elected to stop prosecuting misdemeanor marijuana cases as a result of the Hemp Farming Act, enacted this year and going into effect July 1, 2019.

The idea behind the Hemp Farming Act is that hemp is a useful crop with enormous commercial potential.  It is true that hemp is a relative of the marijuana plant, but it contains significantly less THC, the chemical in marijuana (and hemp) that gets you high.  Hemp has less than .3% of THC.  The Hemp Farming Act spends a lot of time talking about testing to ensure that the levels of THC in hemp crops remains below acceptable levels and, if not, the entire crop needs to be destroyed.

On its face, this is a great law.  Hemp products, including ropes made of the fibers and lotions and other products made from the extracts are of high quality and big business.  Georgia touts itself as being a business-friendly state: this law is in keeping with that theme.  As with many things, however, the problem comes in the execution.

Apparently, the GBI crime labs and therefore the local law enforcement agencies which do their own testing and which must comply with GBI methodologies, only test marijuana for the presence of THC in a drug sample, and not the level of THC.  Therefore, if a person was in possession of a small amount of hemp, it would be indistinguishable from a small amount of marijuana in a GBI test.  Both would contain some THC, albeit one a whole lot less than the other.  The logic, then, is that until the crime labs can tell hemp from its nearly-identical cousin marijuana, a marijuana possession case would be virtually unproveable in court.  That is why jurisdictions like Gwinnett and Cobb County have determined that is not worth their time to even try.

When I first read about this, it seemed like a shocking lack of preparation to me.  The Hemp Farming Act presumed a testing procedure that could distinguish between .3% of THC and .33% of THC, a very slight difference indeed.  I contacted the Department of Agriculture to see what their procedures were and whether or not they were sharing their procedures with the GBI.  Sometimes the obvious solution is the one not considered.

Alas, the Department of Agriculture has not yet approved a method of testing either.  Talk about putting the cart before the horse.  My completely non-scientific Google search on the subject (which will no doubt lead to some highly suspicious targeted marketing in the near future) led to no specific ‘gold standard’ of testing which other states use, although testing methodologies do exist.

What does this mean in the short and long term?  Does it make having small quantities of marijuana effectively legal in some parts of Georgia?  Perhaps, but be careful – just because the Gwinnett County or Cobb County police won’t arrest you for having a joint, it doesn’t mean that the individual municipalities within Gwinnett or Cobb County won’t.  And although you could probably ask for a jury trial and get out of it that way, you’ll still be (potentially) arrested and have to deal with it.  Until there is a consensus amongst the courts and law enforcement, I wouldn’t rely on that.  Marijuana possession is still illegal under state and federal law.  The Hemp Farming Act just puts a wrinkle in the matter of proof.  Therefore, it has nothing to do with previous convictions, since proof has already occurred.  An admission that you have marijuana is proof that you have marijuana, so if you’ve already plead guilty or nolo to a charge, you have no recourse.

Long term, I would assume that eventually a testing method will be agreed upon and approved, and we will go back to the way things were, unless the law changes in some other way in the interim.  Tests for the level of THC do exist in the scientific community, even if a specific test hasn’t been approved by the GBI or the Georgia Department of Agriculture.

For all the good intentions of this law, and for all the ways it mirrors similar laws in other states, it does seem to have been passed without preparation or thought to the unintended consequences.

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