Last week, district attorneys in Bexar, Harris, Nueces, Fort Bend and Travis counties announced their plan to dismiss misdemeanor marijuana possession. They will not schedule hearings until county or state crime labs find a way to differentiate between what is now legal hemp and illegal marijuana.
But prosecutors across the Lone Star State could soon have a solution to measure the amount of psychoactive THC in cases involving possession of marijuana.
TPR’s Ryan Poppe and Steve Short discuss what the new law means and the implications of the misdemeanor dismissals.
Short: So, let’s start with the basics. What — by law — is hemp and what is marijuana?
Poppe: So, hemp can only have a 0.3% psychoactive THC concentration or less, whereas marijuana is defined now as anything above 0.3% THC.
S: And how does that differ in terms of testing?
P: Well, simply put, before testing a marijuana seizure for possession of marijuana worked like a pregnancy test. Is there the presence of THC, yes or no? If yes it was marijuana, but now that marijuana has been defined as THC at a certain level, well, it means the test now must say not only whether someone is pregnant but whether it’s a boy or a girl.
And labs at this point just don’t have that very expensive lab equipment.
S: Is this limited to Texas or are other states seeing this same problem?
P: Nope, we are not unique here, other states that have not legalized marijuana for recreational purposes are seeing this exact same challenge.
Other states are also weighing their options in terms of testing. I spoke with Shannon Edmonds who heads the governmental affairs division within the Texas District and County Attorneys Association following his conversation with officials at the Texas Forensics Science Commission, the group that oversees crimes labs in the state. He said if the state’s major counties and the state's crime lab were to purchase this equipment it would not only be costly but it could delay future prosecutions.
Edmonds: “As things stand today the only way to determine THC concentrations is to buy very expensive equipment, get analysis trained on it and projections are it would take 12 to 18 months to just start.”
P: And then there’s the sheer case load… Texas averages anywhere from 80,000 to 100,000 arrests for possession of marijuana annually.
S: So, why couldn’t the state just use the same labs they direct the state sanctioned dispensaries to use to measure their THC concentration that must be below 0.5% THC as part of Texas’ Compassionate Use Program?
P: That is an excellent question and one I had myself for Edmonds.
E: “There is a difference between testing for a consumer product on the shelf, that testing can be done without the labs having to be accredited by our forensics science commission.”
S: But you say the state may have a solution?
P: Correct, a solution that takes less time to get up and running, too.
Edmonds says The Texas Forensics Science Commission, if approved, could have this new accredited THC concentration testing method in place in six months once those methods have been vetted and then approved by the commission for use in all county and state crime labs.
