Testing, Testing T-H-C

By Mark Yurachek

Catching up on the week’s cannabis news, I came across this press release from DetectaChem concerning a phone app which they claim can measure THC content, which thus would enable police to differentiate between legal hemp and, in many states, illegal marijuana, during a routine traffic stop.

Detectachem’s website indicates that a sample of the cannabis would be tested, as opposed to a breathalyzer-type test which would indicate concentration in the body. The website does not indicate what kind of testing is used to reach the determination and, as I wrote here, it is important to know what kind of testing is being used.

To me, an accurate mobile testing tool would be a step in a positive direction for the industry, but not a game-changer as far as the law goes. The most obvious issue such a test would resolve is the quandary that many law enforcement agencies and prosecutors’ offices have grappled with since the 2018 Farm Bill ostensibly legalized hemp, while keeping marijuana illegal (at least under federal law). In Georgia, a number of law enforcement agencies and prosecutors’ offices have announced that they would no longer be arresting and/or prosecuting suspects for simple possession of marijuana (a misdemeanor in Georgia) because of the impossibility of differentiating marijuana from hemp, thus establishing probable cause for arresting the possessor, in a field test. A number of prosecutors’ offices and law enforcement agencies around the country have followed suit. Were this app to prove reliable, it would alleviate that concern, which seems to have also caused a slowdown in drug-related vehicle searches. I do wonder why these prosecutors and law enforcement agencies stopped at a moratorium only on misdemeanor arrests. If they can’t differentiate hemp from marijuana, what’s the difference if the amount possessed is half an ounce or a few pounds? The answer, legally, is nothing, but I digress.

Even assuming that the testing could prove accurate, I think there are still problems with relying on a test which indicates more than 0.3% THC to establish sufficient probable cause to arrest a suspect, either for a possession offense or for a distribution offense, under either state or federal law. For those less versed in the law, elements are the various criteria, all of which must be satisfied before arresting or ultimately convicting a suspect of a crime. Whereas most people know that someone cannot be convicted unless a jury finds beyond a reasonable doubt that each element of the crime is satisfied, probable cause for a warrant or for an arrest is a significantly lower bar to hurdle. Nonetheless, all elements must still be present before an officer has probable cause to arrest someone and the element I think this testing does not affect is intent.

Intent must be proven for most crimes because a suspect cannot be arrested or convicted without evidence that he knew (or in some cases at least should have known) that he was committing a crime by his actions. So what happens if a citizen lawfully obtains what he believes to be a quantity of raw hemp which is then field tested and found to be marijuana? If the material is packaged and labelled as hemp, it’s possible that the seller has committed a crime, as noted below, but there is no law prohibiting the purchase or the possession of raw hemp, as I discuss below. So if the citizen intended to buy hemp and thought he possessed hemp, can a field test, available only to law enforcement officers, show that he intended otherwise? For me the answer is absolutely not. In that scenario the possession of marijuana is purely accidental, not intentional and, therefore, there is no crime (regardless of the quantity possessed).

I do note, with some consternation, that even after Georgia created extensive laws and regulations related to the hemp industry, it failed to clarify whether possession of hemp by a non-processor, non-grower is a crime. O.C.G.A. §2-23-4(a)(1) states that it is unlawful even to “handle” hemp in Georgia unless that person is a licensed grower or processor. O.C.G.A. §2-23-4(a)(7) states that it is unlawful to “offer for sale at retail” hemp flowers or leaves. This suggests that possession of raw hemp by a non-processor, non-grower is not legal, but then, why are law enforcement and prosecutors sweating the distinction between hemp and marijuana? After all, if possession of even hemp is illegal without a grower’s license or processor permit, all the investigating officer would have to do is ask the possessor for a permit/license or look up the same with the Georgia Department of Agriculture (assuming the technology to do so exists). If the possessor could not provide that information, it would seem it would not matter whether what he possessed was hemp or marijuana, he was violating the law either way. It is possible the DA’s and police realize what the legislature apparently overlooked: although Georgia has described unlawful acts in O.C.G.A. §2-23-4, it has not proscribed a punishment therefor. If there is no punishment, there can be no crime. Ergo, possession of hemp (or the sale of hemp flowers and leaves) is not a crime, though it is not clear that the legislature intended that to be the case.

It seems to me that, if this field testing app proves accurate to a legally acceptable degree, it may well clear the way for Georgia and other states to relax regulations of the hemp industry, since law enforcement officers will have an efficient and reliable means of distinguishing between hemp and marijuana. This would clear up the ongoing controversy surrounding, for instance, smokable hemp, which has presented a serious conundrum for many states. Overall, it would seem that the states would not need to watch growers and processors as closely because one of the reasons for close regulation, the possibility that they will be growing/producing marijuana, not hemp, can be addressed in short order by law enforcement, rather than having to wait for lab testing and results. On the flip side, I also believe that a viable field test for THC will slow the drumbeat for legal marijuana at least a little. One argument that legalization advocates have clearly been setting up is that if hemp is legal and nothing, but a lab test can differentiate between hemp and marijuana, then it is a prosecutor’s nightmare and a financial headache to keep marijuana illegal. This kind of testing would blunt that argument.

So while I think a roadside THC testing tool for law enforcement is a welcome development, I also do not believe it resolves the many and complex issues that hemp presents, at least as long as marijuana is illegal federally and in many states.

In some ways, I am old to this world as I have been a criminal defense attorney in Georgia and Virginia for nearly 20 years and thus have had significant exposure to the cannabis world when it still existed mainly in the shadows. In others, I am so new to this world that I do not even call it a space yet. I appreciate as much information and input as anyone kind enough to read this can offer and I look forward to analyzing more aspects of the law in Georgia and other states as they relate to this fascinating field.

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