Defense lawyer to County Attorney: “Good morning, Henry, where’s the lab report on that little bit of green leafy stuff for my college kid?”
County Attorney: “Aw, hail, I don’t need a lab report.”
Defense lawyer: “Yes, you do.”
County Attorney: “Naw, I don’t. Deputy Bobby Joe has seen a whole bunch of marijuana; based on his training and experience, he can tell what’s marijuana and what’s not.”
Defense lawyer: “Well, we both know that idiot doesn’t know a Twinkie from a Moon Pie, and his training and experience don’t count now that hemp is legal.”
County Attorney: “Guess we’ll just have our Constitutional non‑lawyer County Judge decide that. He’ll be plenty fair, he learned everything he knows about the law from me and his Uncle John Bradley.”
Ever heard THAT before?! No kidding, we all have. But never fear. Below in a condensed form is a handy, printable/put it on your electronic device list of responses we think you can use to great effect. We have organized them by the law/testing, and by practicality.
We are not biochemists, we are lawyers, so this is not intended to be a scientific paper. For those of you who wish to dive deeper into the science, e‑mail Daniel Mehler at firstname.lastname@example.org for links to various excellent papers.
First to the law/testing, in no order of importance:
- Marijuana and hemp have the exact same scientific definition in our Marijuana is defined as Cannabis sativa L at Texas Controlled Substances Act (TCSA) Chapter 481.002. Hemp is defined as Cannabis sativa L at Texas Agriculture Code Section 121.001. The difference is that under the Agriculture Code definition of hemp the concentration of tetrahydrocannabinols must be “not more than 0.3 percent of the dry weight basis” or the substance is illegal. The term tetrahydrocannabinols is defined in the TCSA at Sec. 481.103.
- The old concept of “my training and experience” no longer works since the definitions have changed. We skeptics always doubted the officer had the required expertise to say it’s marijuana, but now that does not matter. Only a valid laboratory test can determine the amount of THC More on testing to follow.
- Cannabis sativa L is a very complex plant. The commonly used term THC is NOT a scientific term, it is one created by various legislatures including ours. The illegal stuff contains Delta‑9 Tetraydrocannabinol. The legal stuff contains Cannabinol (CBD) and not much Delta‑9 THC. The atomic composition of both is exactly the same ‑ C21H30O2 ‑ but those molecules are arranged slightly differently. These are called isomers, that is molecules with the same atomic composition with different structures. That is vitally important when it comes to testing.
- All cannabis plants, be they hemp or marijuana, contain molecules called a terpenes. Terpenes are the molecules that produce an aroma. There are thousands of them in nature. For instance, the terpene pinene gives pine cones its aroma. The terpene limonene gives a lemon peel its scent. These same compounds, terpenes, also give hemp and marijuana their distinct odor. There is no difference in the terpenes found in hemp or marijuana as they are both varietals of Cannabis sativa L.. This means that no human nor canine, cop or otherwise, can tell the difference between the smell of hemp versus marijuana.
- Testing of hemp and marijuana is fraught with problems.
- If a lab is testing cannabis with a Gas Chromatographi, with Flame Ionization Detection (GC‑FID), it is heating the cannabis with a flame. Heat changes molecules a bit and we already know the atomic composition of CBD and THC are the same. That little bit of change due to heat may turn a legal substance (hemp or CBD) into an illegal substance (marijuana or THC) in the lab as a function of the testing protocol.
- A liquid test without heat, High Performance Liquid Chromatography (HPLC) is a better testing methodology, but is still fraught with issues as cannabinoids are pushing the boundaries of what the science of chromatography is capable of.
- Only tiny samples are tested and loads of hemp or marijuana varies greatly in quality and chemical content, even between individual flowers from the same plant. The DPS has admitted in its manual entitled TPS Seized Drugs Manual on page 55 that the “1%” testing procedures cannot determine THC THC content is crucial to know. Was this high‑grade marijuana or hemp that came back slightly over the 0.3% threshold? Remember that intent matters in these prosecutions and that specificity in the testing is necessary to properly advocate for or inform our clients.
- How a defendant who gets his/ her case dismissed but wants the “hemp” returned is beyond the scope of this article.
- DWI due to marijuana and MTR’s due to “hot UA’s” are also beyond the scope of this article. Suffice it to say, however, there are very serious problems proving impairment due to marijuana use. Tolerance, wildly varying elimination rates, and what inactive metabolites mean are issues for another day.
Now to practicality and possible persuasive arguments, in no order of importance:
- “Come on, why not dismiss for Community Service? My client is going to get more ‘rehabilitation’ from helping out unfortunate folks than anything the court can do.” It can be actual community service or a contribution to the food The Code of Criminal Procedure at Article 42A.304(f) permits food bank/Veteran’s Programs contributions. Heck, in our little county (under 50,000) contributions can even be made to 501(C)(3) non‑profits.
- “Your docket is pretty crowded and it’s crowded with assaults, thefts, and the like. Let’s get rid of this ‘might be marijuana’ case so you can spend your time on the other cases.”
- “Speaking of theft cases, especially shoplifting, those are the ones that get you votes from your merchants. Spend your time making your merchants happy.”
- “Your County Commissioners may like fine money, but they don’t like delays, backed up cases, labs fees, jury trials, and all the other things that go along with court fights.”
- “When marijuana eventually gets de‑criminalized, we all know expunction of old cases is going to be part of the legislation. Why in the world would you waste time on a case that will go away in the future? De‑criminalization is a just a matter of when, not if.”
- “Many of your colleagues in the District and County Attorneys Association are refusing to even file these cases. They know the days of unlimited resources to prosecute are over. And they aren’t a bunch of liberal pot lovers, they are practical men and women… and so are you.”
- “My client is a college/high school kid/going into the military/comes from a good family, etc. Here are his transcripts/year book clippings/character references. Yeah, maybe sometimes he acts stupid, but you can’t fix that, so stop trying.”
- “If they ever figure out a way to test, it’s going to cause long delays and clog your docket even worse than it is now.”
- “Don’t try using that silly ‘unlicensed transportation’ stuff on me. We both know that the hemp law in Agriculture Code 122.101 is intended for growers not average folks.”
- And our favorite, surely to be true in rural areas as well as urban ones – “WHO REALLY CARES ABOUT MARIJUANA THESE DAYS? No one, is the answer, including you, Mr. Prosecutor! Be honest with me, we are old friends. It’s not much more than a revenue raising law now. Let this kid help out our less fortunate citizens with community service. You still look good, the locals get a benefit, he stays a student/employed person, and he is a bit wiser.”
We hope this article will bring you good outcomes. If it doesn’t, use it to make a solid record for appeal, waive your fee for the appeal, waste the prosecutor’s time on the appeal, and use your eventual victory to your advantage in the future. You will more than make up for the uncharged appellate fee!