At the outset, I want to point out that possession of marijuana is still illegal in Georgia. The information in this column does not condone its possession, use, or distribution. There can be serious consequences for those who associate themselves with marijuana. The below information describes the current circumstances associated with hemp and marijuana. This information can change with new legislation or other circumstances.
On May 10, 2019, the Georgia Hemp Farming Act became law. Passing the Act was a wise move by the General Assembly and the governor. It was a blessing to many Georgians suffering from a number of medical ailments.
Basically, the Act changed the definition of Marijuana and THC, the psycho-active ingredient of Marijuana, to exclude Hemp. Hemp is federally defined as a delta-9-THC concentration of not more than 0.3 percent on a dry weight basis. (This column does not address Georgia’s Hope Act (HB 324), which allows for the production, manufacturing, and dispensing of low THC oil with a valid state-issued license.)
The most common hemp product legally sold in our state is cannabidiol (CBD).
The main issue facing our law enforcement community is that the GBI crime lab generally does not test marijuana. They encourage local law enforcement to use a three part field test which only tests for the presence or absence of THC. The test cannot determine the percentage of THC. This is not enough to maintain a marijuana prosecution today.
Many crime labs are also unable to distinguish between hemp and marijuana. The technology to do so exists, but it costs hundreds of thousands of dollars.
This issue can also affect the nature of traffic stops.
The Georgia Hemp Farm Act makes possession of hemp in any form legal. Hemp and marijuana look the same and have the same odor, both raw, burned, and un-burned. This similarity makes it very problematic for law enforcement to use the appearance or odor of marijuana as a basis for an investigative detention, probable cause for arrest, seizure of the item, or probable cause for a search warrant.
In order for officers to seize an item to have it tested, they must have probable cause that the item being seized is evidence of a crime. Therefore, when a law enforcement officer encounters plant material that looks and smells like marijuana, she will no longer have probable cause to seize and test the suspected contraband because the probable cause to believe it is evidence of a crime will no longer exist as the suspected marijuana could be legal hemp.
Police drug dogs cannot differentiate between hemp and marijuana because the drug dogs are trained to detect THC which is present in both plants.
How are prosecutors reacting to this dilemma?
Gwinnett, Cobb, DeKalb, and a growing number of other counties are dismissing marijuana cases that involve possession of less than 1 ounce, which is a misdemeanor. This only applies to arrests made after May 10, 2019.
Officers at the Athens-Clarke County Police Department will no longer be making physical arrests or issuing summonses for marijuana charges. Instead, the department said officers will seize the suspected marijuana, place it into evidence, and write a police report.
Some prosecutors are working with city governments to make simple possession a city ordinance with a small fine.
However, some prosecutors are currently seeking other ways to address the dilemma. Peter John Skandalakis, Executive Director of the Prosecuting Attorneys’ Council of Georgia (PAC), former District Attorney of the Coweta Judicial Circuit, and one of my mentors, said the Hemp Farming Bill makes prosecuting marijuana cases “difficult but not impossible.” He said his agency has been aware of the potential complications and had previously suggested language addressing them be included in the bill.
PAC is in conversations with state officials to find a remedy to the situation, whether through a legislative fix or new field testing, he said.
So, what does this all mean? One of two scenarios will emerge:
1. The state will begin to ease restrictions on the possession of small amounts of marijuana while focusing only on traffickers and those who illegally distribute large amounts of marijuana; or
2. We will see new technology emerge that will allow for the testing of levels of THC and continue to prosecute people in possession of any amount of marijuana.
Either way, while other states have decriminalized possession of marijuana, it is still illegal in Georgia today.
This current dilemma should not embolden anyone to make a bad choice.