Without The Right Testing Available, New Hemp Laws Make It Hard To Prosecute Marijuana Cases

“To actually do criminal prosecutions, the equipment would be $300,000 to $400,000.”

By Alexandra HartJuly 5, 2019 7:02 am, , ,

New hemp laws passed during the 2019 Texas legislative session recently went into effect. Keri Blakinger covers criminal justice for the Houston Chronicle, and says one bill, legalizing hemp products with 0.3% or less THC, mirrors a similar federal regulation, implemented last year.

“The Texas law defines hemp as anything that has less than 0.3% THC, and marijuana is anything that’s more than that,” Blakinger says.

She says hemp and marijuana both come from the cannabis plant. But aside from the difference in THC amounts, hemp is also used very differently than marijuana. Hemp is often spun into fiber and used to make clothes; its THC count is so low that it has little value as an intoxicant. Marijuana, on the other hand, is almost exclusively used as a drug for recreational or medical purposes.

The problem now, in Texas, is that the state doesn’t have the right equipment to effectively test cannabis samples to tell the difference between hemp and marijuana. Before the new law, its instruments only needed to determine whether the material was cannabis or not.

“Now, they need to actually know the amount of THC, and that requires a different kind of testing,” Blakinger says. “They would have to purchase expensive equipment that they currently don’t have.”

She says “edibles” – things like brownies and gummy candies that are laced with marijuana, are especially hard to test with the equipment the state currently uses. Law enforcement would need to invest in forensic-grade testing machines, she says.

“To actually do criminal prosecutions, the equipment would be $300,000 to $400,000,” Blakinger says. “So they can’t test – they can’t prove a case beyond a reasonable doubt that it’s marijuana as opposed to hemp.”

But Blakinger says it’s not clear whether lawmakers realized that the testing would be a problem when they passed the law. She says there’s one lab in Texas capable of doing the more sophisticated testing, but it wouldn’t be able to handle demand from across the state.

She says right now, it’s up to each jurisdiction to decide how to prosecute marijuana charges.

“In Harris County, they’re still going to refer you to the diversion program that they have, but if you refuse it, they’re only going to prosecute if police can somehow come back with a lab test saying this is definitely marijuana,” Blakinger says. “Which, as of now, is very difficult to do.”

Some counties are continuing to prosecute marijuana cases even if they have to wait until testing improves.

Tarrant County, on the other hand, has thrown out some cases.

“Everyone’s handling it a little differently. There doesn’t seem to be a consensus on the criminal justice side,” Blakinger says.


Written by Caroline Covington.