Most Texas labs cannot test for marijuana, hemp under new laws, jeopardizing arrests

Most lab technicians in Texas will no longer be able to tell the difference between marijuana, hemp and hemp products from test results because federal and state laws have changed the definitions of the two plant components.

Before the passage of the U.S. Farm Bill of 2018 in December and the law in Texas that legalized the sale and production of hemp and hemp products in June, hemp was commonly referred to as one of the parts of the cannabis plant that was not marijuana, according to James Miller, a seized drug analyst from Houston Forensic Science Center, the agency that operates the Houston Crime Lab.

With the passage of the new federal and state laws, hemp gained a definition and marijuana was redefined, and the concentration of THC (tetrahydrocannabinol) in the product would be the distinguishing factor between the two plant components, Miller said.

“If it’s under 0.3% [THC], it’s hemp, it’s not marijuana. If it’s above 0.3%, it will now be marijuana,” Miller said in testimony before the Houston Forensic Science Board. ”This caught a lot of us by surprise.”

To do the required testing, the lab will need special equipment and special resources that it does not have at this time, Miller said.

According to a statement from the Tarrant County Medical Examiner’s Office, its drug chemistry lab does not possess the instrumentation required to quantify the amount of THC in either a plant material or any other type of evidence containing that compound.

The Houston lab suspended testing of suspected marijuana, hemp and related products on June 10 and that suspension was to remain in place until its reports could be modified to include that the lab could not distinguish between marijuana and hemp, Miller said. About 18 percent of the Houston lab’s test samples were for marijuana identification, Miller said.

But some of those samples included several items that required testing, Miller said.

“We are not currently able to do the testing,” he said. “Most, if not all of the labs in the state of Texas, cannot perform this testing as of this date. There may be some labs that can develop the testing, but they certainly cannot do it right now.”

State marijuana prosecutions may be in limbo

The Texas District and County Attorneys Association stated in its legislative update Monday that because the law took immediate effect on June 10, crime labs have not been given the time or the resources needed to properly equip labs with the equipment and staff needed to distinguish legal hemp from illegal marijuana, nor have state agencies been able to create the regulatory framework necessary to regulate hemp.

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” according to Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.

The lab for the Texas Department of Public Safety and other state and private labs will have to purchase new equipment and change certain testing procedures before they can supply that new information to courts so criminal cases involving marijuana can go to trial, Edmonds said.

The advisory says it will be four to 12 months before labs can purchase equipment, adopt protocols and provide the evidence needed to prosecute a marijuana case at trial.

“Until then, there will be no easy way to determine whether the weed your officers seized is illegal marijuana,” Edmonds said.

In response, a statement from State Rep. Tracy King, D-Batesville, who authored the Texas hemp bill, said that a significant rise in caseloads for labs to process as a result of the law was not expected, and the statement also pointed out that some labs do have the capability to determine the THC concentrations in samples.

“HB 1325 follows the federal definition of hemp and we think our bill has ample safeguards in place such as shipping manifests, QR codes on products, rigorous pre- and post-harvest testing requirements that all ensure hemp is grown, transported, and sold in a transparent, safe, and legal manner,” King’s statement said.

Get creative with weed and hemp prosecutions

While prosecutors are waiting for the labs to catch up with the law, they can consider investigating or prosecuting hemp and marijuana violations under different laws or regulations and “get creative,” the advisory suggests.

One way law enforcement officers can get creative is requiring those people who say they are transporting hemp product to produce the paperwork required to legally transport hemp products.

“Simply put, if the paperwork is not in order, officers can assume the cannabis is marijuana — or at a minimum, legal hemp being illegally transported, which is also a criminal offense — and proceed accordingly,” Edmonds said.

The other bad news for prosecutors and law enforcement is that there is no field test or drug dog qualified to distinguish between legal hemp and illegal marijuana, and many other states that have legalized hemp have run into this same problem, Edmonds writes in the update.

Gary Smart, president-elect of the Tarrant County Criminal Defense Lawyers Association, said most marijuana cases never make it to the inside of a courtroom and for those that do, many times drug test results are never presented as evidence.

“The officer’s training and experience is always the standard that I’ve seen,” Smart said.

In other words, the jury will be presented with a law enforcement officer who says it looked and smelled like marijuana and that will be enough to convict the accused, according to Smart. But most marijuana cases never get as far as a trial, and many jurisdictions are shying away from marijuana arrests and prosecutions, Smart said.

“Almost all of them are resolved with a plea agreement or a dismissal,” Smart said. “They have diversion programs for the first-time offender and the economics of challenging the law in court, finding a client willing to pay for it, most people are not willing to make five or six court appearances to test the law.”

Someone will test the new law

David Sloane, a Fort Worth attorney and spokesman for DFW NORML, an advocacy group fighting against marijuana prohibition, said the circumstances of the accused play a big role in whether or not he will take a plea bargain offer.

“Suppose you are already on probation and a judge is chomping at the bit to send you back to prison — you have a hell of an incentive to go through a trial,” Sloane said.

But typically, the accused will want to dispose of this type of case in the most expedient and inexpensive way he can, according to Sloane.

“Justice is expensive,” Sloane said. “Especially if in a case like this, I get a chemist involved, that will be a lot more than the legal fees. “

But prosecutors and law enforcement should be careful at this point as the understanding around the new law evolves, Sloane suggested.

“I think this will really throw a monkey wrench in a lot of the arrests they are making,” Sloane said. “If the state doesn’t have the means of proving up its case, it will put all the marijuana arrests in jeopardy and it will create some nightmares for the prosecution.”

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Mitch Mitchell is an award-winning reporter covering courts and crime for the Star-Telegram. Additionally, Mitch’s past coverage on municipal government, healthcare and social services beats allow him to bring experience and context to the stories he writes.