Texas Drug Labs Can’t Distinguish Legal Hemp from Illegal Marijuana, That’s Awesome

Good news for some marijuana defendants in Texas. It may be more difficult for the government to convict you now that hemp is legal. The issue is in the way the law now defines legal hemp products. Texas recently legalized hemp, and defined hemp as cannabis Sativa l. with a THC % of .3 or under. What’s wrong with that? Well, Texas defines illegal marijuana as cannabis sativa l. with a THC level of over .3%. So when the police find your plant material, or vape oil, or gummies, the only difference between being illegal or not is the % of THC in the product. This is awesome because the drug labs that the State uses to test marijuana don’t have the equipment currently to test for THC %. The State has millions of tax dollars to waste buying new drug lab equipment, so expect the market to supply some solution eventually. Texas Prosecutors are already aware of these issues and are brainstorming how to convict you anyway, at least with plant material cases.

Does this change in the law apply to those currently charged with possession of marijuana?

I’m not sure, that’s going to have to be litigated, but defense lawyers are going to argue it does and prosecutors our going to argue it doesn’t. The law that makes hemp legal in Texas is already in effect. So possession cases after June 14th will be affected. Those before will have some extra litigation on their hands if they want to use a hemp defense.

I thought that in Texas the State didn’t have to test cannabis plant material in a lab? 

That used to be true. In Texas we have pro-conviction appellate courts who have historically bent over backward to save convictions and screw defendants. Before hemp was legal an officer could testify that they could recognize marijuana by sight and smell, and the jury could convict on that evidence alone. No lab test was necessary. Now that hemp is legal an officer can’t make the same argument since cannabis sativa l is going to look and smell the same no matter how much THC is in it. The law allows for cannabis to be seized for testing, but no lab is capable of doing the testing.

So what does this mean for plant material?

The hemp bill that passed doesn’t allow for any smokable hemp products. That is, the “consumable” hemp products that are legal under the statute are supposed to CBD oil consumables, not smokeables. So expect prosecutors to argue that if you have plant material that it’s not legal hemp since you were going to smoke it. Also, the legal plant material that is allowed under the Statute may not exist yet. HB 1325 has requirements for growing and transporting hemp and those businesses don’t exist yet.

Finally, as a proponent of legalization, this is great news because fuck prosecuting adults for possession of marijuana. Anything that makes it harder for prosecutors to destroy people over possessing pot is a win for liberty and good for Texas. Hopefully, prosecutors will finally get the message that these cases are a huge waste of time and move on to cases involving real crimes with victims.