By Jolie McCullough and Alex Samuels, The Texas Tribune
Due to a brand new state legislation, prosecutors throughout Texas have dropped a whole lot of low-level marijuana fees and have indicated they gained’t pursue new ones with out additional testing.
An unintended facet impact of the legislation is that it has made it troublesome for legislation enforcement to inform if a substance is marijuana or hemp, in line with prosecutors. Amongst different provisions, Home Invoice 1325 modified the definition of marijuana from sure elements of the cannabis plant to these elements that include the next stage of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana that produces a excessive. It’s a distinction quite a few district attorneys, the state’s prosecutor’s affiliation and crime labs say they don’t have the assets to detect, weakening marijuana instances the place defendants may declare the substance is as a substitute hemp.
“The excellence between marijuana and hemp requires proof of the THC focus of a selected product or contraband, and for now, that proof can come solely from a laboratory able to figuring out that kind of efficiency — a class which apparently excludes most, if not all, of the crime labs in Texas proper now,” said an advisory launched by the Texas District and County Attorneys Affiliation final month.
Some concerned within the hemp laws have countered that there’s already obtainable gear to check suspected medicine, even when it isn’t in most crime labs.
Nonetheless, high prosecutors from throughout the state and political spectrum — from Harris to Tarrant counties — have dismissed a whole lot of pending misdemeanor marijuana fees for the reason that legislation was signed by Republican Gov. Greg Abbott and instantly went into impact on June 10. They’ve additionally signaled they gained’t pursue any new fees with out testing a substance to point if there’s greater than .3% of THC, the now-legal restrict to tell apart between hemp and marijuana.
“To be able to observe the Legislation as now enacted by the Texas Legislature and the Workplace of the Governor, the jurisdictions… is not going to settle for legal fees for Misdemeanor Marijuana Possession of Marijuana (four oz. and beneath) and not using a lab take a look at consequence proving that the proof seized has a THC focus over .3%,” wrote the district attorneys from Harris, Fort Bend, Bexar and Nueces counties in a brand new joint coverage launched Wednesday morning.
#BREAKING District attorneys in 4 Texas counties – Bexar, Harris, Fort Bend and Nueces – simply introduced a shared coverage to cease accepting fees on misd. marijuana instances in mild of the legislative snafu that is difficult drug testing. This is the coverage: pic.twitter.com/8p2zQydL45
— Keri Blakinger (@keribla) July 3, 2019
Tarrant County’s District Lawyer’s Workplace beforehand issued an identical assertion, and since final month has dismissed 234 low-level marijuana instances. Harris is within the technique of dismissing 26, in line with a spokesperson. The counties have stated they’ll nonetheless pursue felony marijuana instances, and say they’ve the choice to refile and later pursue fees in marijuana arrests if testing assets turn out to be obtainable.
For now, it’s unclear when that could possibly be, and till a course of is put in place, prosecutors will “have all these marijuana instances the place somebody can argue it’s hemp,” stated Lisa Pittman, a cannabis legislation lawyer.
“They’ve to simply desk these instances,” she stated.
A criminal offense lab scientist stated even when he will get new forensic testing gear instantly, there’s nonetheless a months-long accreditation course of to have the ability to use examined drug proof in courtroom.
Peter Stout, the CEO and president of the crime lab utilized by the Houston Police Division, stated till the legislation went into impact on June 10, all that was required to determine one thing as marijuana was a fast take a look at to verify for the presence of cannabinoids in issues like a plant, gummy or vape pen oil. Figuring out how a lot, if any, THC is current, is rather more difficult, he stated, and he’s unable to do it now.
“The plant stuff is one factor,” he stated. “All these edibles and infused merchandise is a complete completely different factor, and I don’t know what we do about that.”
Testing could be accomplished, Stout stated, however gear to check forensic high quality on these kinds of merchandise — wanted to find out if it’s a managed substance beneath state legal definitions — prices between $300,000 and $500,000. He estimated greater than 20 labs would want such gear to cowl the state, and every would then have to undergo the accreditation course of.
“Folks can adjust to the legislation if given the instruments to do it, it’s simply going to value money and time,” stated Shannon Edmonds, director of governmental relations for the prosecutor affiliation.
However the Republican Senate sponsor of the hemp laws, state Sen. Charles Perry of Lubbock, argued there’s already enough expertise available for counties that want it to check suspected marijuana. Tarrant County District Lawyer Sharen Wilson instructed the Fort Price Star-Telegram final month she believed her workplace had discovered two labs.
“Though the capability will not be there but to obtain fast lab outcomes, there are labs able to obtain and take a look at merchandise at this time,” Perry instructed the Texas Tribune. “We’re having day by day conversations with legislation enforcement, prosecutors, and hemp stakeholders to handle and clear up any considerations that exist as capability catches up.”
He added that beneath the 2018 Farm Invoice, which legalized hemp that comprises not more than 0.3% THC on the federal stage, hemp and hemp merchandise would have been crossing state traces anyway — even with out legislative motion.
“Earlier than the Texas Hemp Invoice handed, hemp-derived merchandise may enter our state and be purchased and bought with little to no oversight,” Perry stated. “The truth is, the 2018 Farm Invoice prohibits states from proscribing the transportation of hemp with lower than 0.3% THC. With the passage of the Texas Hemp Invoice, we now have correct laws in place to guard Texas shoppers at each flip.”
The state laws, which referred to as for no funding to buy crime lab gear, sailed via the Legislature unanimously largely due to the federal legislation. Due to the overwhelming help, when Abbott signed the invoice on June 10, it went into impact instantly — which is a part of the issue, in line with prosecutors.
“This new legislation took impact instantly, with out the standard grace interval throughout which the procedures and laws are determined and put in place to help legislation modifications,” the Tarrant County District Lawyer’s Workplace stated in a press release.
Stout stated he didn’t know in regards to the altering marijuana definition within the invoice till after it was too late to testify, for the reason that invoice went via agricultural committees, not those that deal with legal process. Abbott’s workplace didn’t reply to a request for remark for this story.
The scramble amongst a number of district attorneys comes months after lawmakers rejected a invoice by state Rep. Joe Moody, D-El Paso, that will have lessened the legal penalties for Texans discovered to own small quantities of marijuana. However prosecutors have famous that the dropped instances and alter in coverage isn’t decriminalization.
Tarrant County’s 234 dismissals could be refiled inside two years if lab outcomes are capable of be produced, in line with a spokesperson. And Harris County is constant its marijuana diversion program, which permits these suspected of possessing small quantities of marijuana to finish a 4
However within the meantime, at the least in some elements of the state, it seems some marijuana convictions have been positioned in limbo.
“You will have to place your marijuana instances on the identical ‘ready for lab outcomes’ shelf as your felony DNA instances and postpone them till the labs can present the wanted proof for prosecution,” stated the prosecutor affiliation advisory.
This text initially appeared in The Texas Tribune.
The Texas Tribune is a nonprofit, nonpartisan media group that informs Texans — and engages with them — about public coverage, politics, authorities and statewide points.
Texas Governor Indicators Invoice To Develop State’s Medical Marijuana Program