Prosecutors Can’t Effectively Test Marijuana for Prosecution

Effective May 10, 2019, Georgia has permitted exploration into the cultivation and processing of hemp as a potential new commercial market for farmers and businesses. This law permits research into growing and creating hemp and emerging markets. The hope is to put Georgia on the forefront of hemp-based business.

The new law, however, has presented some issues for local prosecutors. The state of Georgia is currently unable to test substances and accurately distinguish between legal hemp and illegal marijuana (insert rant about ridiculous it is that government employees ruin people’s lives over marijuana).

This issue is not unique to Georgia. Similar problems are facing prosecutors in Florida and Texas.

To be clear, marijuana is still illegal. The problem is in the government being able to prove that marijuana isn’t hemp.

What is the Problem for Prosecutors?

Prosecutors bear the burden of proving someone’s guilt beyond a reasonable doubt. That means that if you are charged with possessing marijuana the government has to prove beyond a reasonable doubt that the substance you are accused of possessing is in fact marijuana.

With the new hemp law, GBI crime labs would have to determine the concentration of THC in the substance in order to effectively distinguish between legal hemp and illegal marijuana.

Hemp means the Cannabis sativa L. plant and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salt isomers, whether growing or not, with the federally defined THC level for hemp or a lower level.

Federally defined THC level for hemp means a delta-9-THC concentration of not more than 0.3 percent on a dry weight basis or the THC concentration for hemp defined in 7 U.S.C. Section 5940, whichever is greater.

So, prosecutors have to be able to prove beyond a reasonable doubt that any suspected substance has a delta-9-THC concentration of over 0.3 percent on a dry weight basis. Currently, prosecutors are having a difficult time getting that testing done at the GBI.

What does this Mean?

It depends. Some folks arrested on May 10, 2019, or later for marijuana have seen good results where prosecutors have realized the issue and dismissed charges. Some prosecutors, I’m sure, will be less reluctant to take such measures.

Going forward, the state will undoubtedly change. The law will change or testing facilities will quickly accommodate the change in the law and be able to determine the THC level.