Hemp Legalization Was "Lucky" Break For Man Facing Marijuana Charges 

By Kelly Burch 08/22/19

A Texas man was let off the hook because the state could not prove whether he had pot or hemp.

a scientist holding hemp oil and a marijuana leaf
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When Donte Chazz Williams went to court earlier this month for charges related to his possession of two grams of marijuana, he was afraid that he would be going to jail, or at the very least end up on probation. 

Instead, a Houston-area district attorney dismissed the charges against Williams, scribbling a note that the plants seized from Williams’ car could be either marijuana—which is illegal—or hemp, which is legal in most of the country due to changes to the 2018 Farm Bill. Distinguishing which plants are psychoactive and which are not would require expensive and time-consuming lab testing that the DA wasn’t interested in pursuing.

“I feel lucky, for real,” Williams told NBC News. “Now I don’t have to do anything but go find myself a job.”

Many defendants like Williams have been surprised to find that their marijuana-related charges are being dropped, because without lab tests, law enforcement can no longer prove that a substance is marijuana and not legal hemp. 

“That’s crazy,” Williams said. “It actually blew my mind.”

Prior to 2018, since both marijuana and hemp were illegal, proving that something came from the cannabis plant (the species that marijuana and hemp both fall under) involved a simple analysis. 

Burden Of Proof

However, now that hemp—defined by the government as having no more than 0.3% of THC—is legal, law enforcement is faced with the task of proving how much THC is in a plant, which is a much more involved lab process. 

“Everyone is struggling here,” said Peter Stout, president of the Houston Forensic Science Center in Texas. 

Because of that, many states and counties have stopped prosecuting minor marijuana offenses, to avoid the expense and time needed for analysis. 

Duffie Stone, president of the National District Attorneys Association, said distinguishing between hemp and marijuana is a nationwide issue. “This problem will exist in just about every state you talk to,” he said. 

Phil Archer, a state attorney in Florida, said this confusion is unavoidable if hemp is legal. Archer no longer pursues marijuana cases, ever since Florida's new hemp law took effect July 1st. 

“If you want to have a hemp industry, there’s no way to get around this issue,” he said. “I would say a majority of circuits are handling it in same way.”

For defendants and defense attorneys, including Mitch Stone, president of the Florida Association of Criminal Defense Lawyers, the change to hemp policies has provided an easy defense. 

“State attorneys don’t want to be dragged into court by defense lawyers to defend a case where they can’t prove that their decisions were lawful,” he said. 

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.