Originally published by Broden & Mickelsen LLP.
Police in Texas have struggled since last year to arrest people for the possession of marijuana following the state legislature’s legalization of hemp.
The process may become easier after March when new testing equipment will allow police to make the distinction between legal hemp and unlawful marijuana.
Allen Police Chief Brian Harvey, who is a regional director of the Texas Police Chiefs Association, said the Texas Department of Public Safety will soon be able to test oil and plant-based products to detect tetrahydrocannabinol (THC), the psychoactive chemical found in cannabis plants that gives users the feeling of being high.
Texas DPS has partnered with Sam Houston State University in Huntsville on crime lab testing equipment that detects the level of THC in products, Harvey said. He told the TV station WFAA about the new testing procedure.
The equipment will allow police to find out more quickly if a substance is marijuana or hemp. The Texas legislature passed House Bill 1325, the Hemp Farming Act, in 2019. The legislation legalized hemp products in Texas. Legal hemp contains 0.3% or less of THC. Concentrations above 0.3% are considered illegal marijuana.
WFAA reported that even when the Texas Department of Public Safety begins testing for THC in March, police will still have a dilemma.
Harvey pointed out that police don’t have a roadside field test for 0.3% THC. Officers use the standard of probable cause to determine the likelihood that a person is carrying marijuana as opposed to hemp. They follow through with arrests. However, the cases cannot be brought to trial until lab results determine whether the subject of the arrest was carrying hemp or marijuana.
House Bill 1325 resulted in a huge fall in marijuana arrests in Texas. High profile police errors also made headlines. Recently, a Texas Department of Public Safety trooper arrested a trucker. He was accused of hauling more than a ton of marijuana near Amarillo. Aneudy Gonzalez was jailed for nearly a month on federal charges, and police seized the plant material. However, the authorities later released the driver from jail. His case was dismissed and the cargo is expected to be returned. Lab tests found he was transporting hemp as opposed to marijuana.
The state’s policy is not to interfere with interstate commerce of hemp. Police are not able to seize cannabis or arrest anyone without probable cause that the substance is cannabis as opposed to hemp.
Texas officials are still drawing up regulations for hemp transportation and farming. Some cities are considering backtracking on low-level marijuana enforcement. The Austin City Council will vote on a proposal later this month. If approved, the measure would effectively end arrests and fines by city police for the possession of personal amounts of cannabis, The Texas Tribune reported.
It remains to be seen how soon the Texas Department of Public Safety will be able to bring in new testing equipment. Whatever the timetable, marijuana enforcement is in a state of flux. It’s important to talk to an experienced Texas drug defense attorney to defend your rights. Please call our Dallas-based team at (214) 720-9552.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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