The Texas Legislature recently legalized the cultivation of hemp, complicating enforcement of existing marijuana laws in the state. Hemp and marijuana are the same species of plant, Cannabis sativa, and are distinguishable only through a chemical analysis which shows the THC concentration. The concentration of THC, the psychoactive compound in marijuana, is the legal difference between the two strains, and they are indistinguishable through appearance or odor. These similarities have raised concerns for law enforcement in many states (including North Carolina) as the low concentration of THC in hemp causes many traditional marijuana tests to give positive results, even where there is not sufficient THC present to meet the legal definition of marijuana. In light of these issues, the District Attorneys of four Texas counties say they will no longer prosecute non-felony marijuana possession charges without a lab test confirming the THC concentration. Other district attorney offices in Texas have also dismissed marijuana and THC cases.
District Attorneys from Bexar County, Harris County, Nueces County, and Fort Bend County, representing more than a quarter of the population of Texas, have released a statement declaring that their offices will no longer accept charges for Misdemeanor Possession of Marijuana without an accompanying chemical analysis. The statement notes that “[u]nder the new law, to determine if a substance is marijuana or hemp, laboratory testing is required to show the THC concentration.” The statement says that District Attorneys’ offices may process charges for felony marijuana cases while test results are pending.
Texas is just one of multiple states continuing to grapple with the effects that hemp legalization has had on marijuana identification. In an earlier post, we have provided information and two draft motions to assist attorneys in North Carolina working on cases involving marijuana charges, available here. As lawyers litigate the validity of marijuana identification methods in the age of legalized hemp, it appears some district attorneys are taking proactive steps to avoid charging individuals for possession of a legal hemp product. These proactive steps are important because being charged with a crime has its own set of collateral consequences, even before the accused ever walks into a courtroom.