It’s all cannabis. (Photo by Getty Images)
As of last month, possession of small amounts of marijuana has been effectively decriminalized in Travis County and throughout much of Texas … by accident.
It’s currently impossible for law enforcement agencies to discern whether confiscated cannabis is legal “hemp” or illicit “marijuana.”
How did we – one of the very least progressive states on cannabis policy – end up in this alternate reality? In short: The 86th Texas Legislature passed a bill with bipartisan support intending to benefit farmers by allowing cultivation of hemp as a cash crop. In doing so, House Bill 1325, signed into law on June 10, defined legal hemp as cannabis containing less than 0.3% tetrahydrocannabinol (THC). That created an immediate issue for law enforcement agencies around the state: They don’t currently have the proper equipment, accredited personnel, and approved methodology to quantifiably analyze the concentration of THC in a lab sample. Therefore, it’s impossible for them to discern whether confiscated cannabis is legal “hemp” or illicit “marijuana.”
As such, the Travis County Attorney’s Office will now reject misdemeanor possession of marijuana charges filed from June 10 forward, unless they’re accompanied by a lab report. In addition, the Travis County District Attorney has announced the dismissal of 32 felony cases related to possession or delivery of marijuana. County officials estimate that it will take eight to 12 months for law enforcement to sort out their processes to test cannabis.
In late June, the Tarrant County District Attorney dismissed 234 misdemeanor marijuana possession charges on the grounds that crime labs are ill-equipped to test the amount of THC in confiscated cannabis. The following week, Harris, Bexar, Fort Bend, and Nueces counties also made it known that they would not prosecute personal possession charges – under a quarter pound – without a lab test proving the evidence seized has illegal THC content.
On Wednesday, July 3, Travis County joined the club. As first reported in the Chronicle, County Attorney David Escamilla met with Sheriff Sally Hernandez, Austin Police Chief Brian Manley, and District Attorney Margaret Moore to decide how the issue would be handled locally. At 3:45pm, Escamilla confirmed to us that his office would reject cases filed from June 10 forward; Moore issued a statement announcing the dismissal of felony cases later that day. Escamilla told the Chronicle it was the only possible reaction to what he characterized as a “snafu” by state legislators. “The law is the law,” he said.
To the best of Escamilla’s knowledge, there is just one accredited laboratory in Texas that can test cannabis and determine, beyond a reasonable doubt, whether it’s marijuana or hemp. He believes another facility is close to being accredited, but with an influx of cases from the entire state, those labs will likely be backed up. Meanwhile, law enforcement agencies expect that updating their forensic equipment and processes will come at an extremely high cost. There are THC field tests available, including a widely available product called NIK Test E, but they’ve been called into question nationally for giving false positives on legal CBD products.
A record 59 cannabis-related bills were filed during the last legislative session, and HB 1325 passed near unanimously in the House and Senate. It was promoted as a way to allow struggling farmers to grow an emergent and profitable industrial crop, not a way to confuse the processes of law enforcement – although it’s worth noting that HB 1325’s author, Rep. Tracy King, D-Batesville, voted in favor of the main decriminalization bill, HB 63. Republican Agriculture Commissioner Sid Miller even mitigated his endorsement of the hemp bill by saying: “Potheads, don’t get too excited.”
However, Jax Finkel, executive director of Texas NORML (National Organization for the Reform of Marijuana Laws), anticipated that changing hemp laws would cause THC testing complications. “This is not a surprise. It’s something that should have been set up in 2015 when the Texas Compassionate Use Program went into effect,” she says, referencing the state’s limited medical cannabis program and the lack of quantitative testing associated with it. “Stakeholders did see this coming. It’s how they chose to deal with it that’s interesting.”
Finkel believes very few people are upset with the wave of counties rejecting low-level marijuana cases. “This is allowing what most Texans support – 84% want to see lesser penalties for marijuana,” she says, noting that urban officials understand these changes can help them save money and better allocate resources. “This is a real-world test run for what it will be like if we don’t prosecute for marijuana. We’ll see that it’s not worth the resources or testing cost.”
Even the advanced olfactory receptors inside the nose of a police detection dog can’t determine the amount of THC in cannabis. That means that no matter what he alerts his officer to, Sergeant Scruffy doesn’t actually know whether a pulled-over driver is holding a felonious hash oil pen or a perfectly legal CBD one. Even before last Wednesday’s announcement that all misdemeanor possession charges would be tossed out, local criminal defense attorneys were already licking their chops about a new potential strategy: challenging searches that are prompted by an odor of marijuana.
“Dogs on the roadside that are trained to sniff for probable cause to get in your car can’t tell the difference between hemp and marijuana,” explains Jason English, a criminal and civil lawyer and former Travis County prosecutor. “It’s common for an officer to use the odor of marijuana to get into the car, and that’s always been a rubber stamp that’ll get them in, but now they need a lab to say whether it’s marijuana or hemp because the only difference is THC percentage. It’ll be interesting.”
Mykal J. Fox, an Austin-based criminal defense attorney who’s an active member of NORML, has also been eyeing the now-imperceptible distinction between weed and hemp as grounds to get a probable cause search thrown out. “When the bill went into effect immediately on June 10, nobody was really prepared for what that meant, specifically law enforcement – to my clients’ advantage,” he offered.
Because he does consulting for CBD retailers in Austin, Fox knows that hemp flower “looks, smells, and smokes just like the stuff with THC in it. … The understanding has always been that a dog’s sniff alert gives rise to probable cause, but now the question is: ‘Is the dog smelling something that’s legal to have?’ and, if so, how does that give an officer probable cause to go into the car? That could be an argument in court.” Fox adds this could impact cases with charges that go beyond possession of marijuana – if an individual gets caught with a felonious controlled substance, but the officer searched the car based on unqualified odor detection, the case could be thrown out.
Compared to other parts of Texas, Travis County has a well-established, lenient approach to enforcing marijuana laws. First-time offenders caught with under two ounces get to take a four-hour diversion class and pay a small fine, in lieu of going to court; Fox says that his clients who are popped with a THC pen, considered a felony in Texas, often get away with taking an eight-hour class. But even these lesser punishments can’t be safely imposed without a lab report, and those involved in the 93 dismissed cases can be considered unintended benefactors of laws in flux. They may not be the only ones.
While Betty Blackwell, president of the Capital Area Private Defender Service board, is pleased that local courts are not accepting misdemeanor marijuana charges for the time being, she believes the decision should be retroactive. Her interpretation of case law is that on procedural matters such as this, dismissals should go into effect when a case is tried and, therefore, be applied to all pending cases – not just those occurring on or after June 10. Blackwell also wants to see old warrants for misdemeanor possession charges tossed out. She says there are some 4,000 currently outstanding warrants for possession in Travis County. She contends that serving the warrants would be “grossly unfair if down the road the cases will just be dismissed.”
A version of this article appeared in print on July 12, 2019 with the headline: Dope or a Rope?