George Roland | Denton Criminal Defense Lawyer

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Marijuana Law Update: June 2019

The Texas legislature recently passed a bill legalizing some form of hemp. This has important consequences for Texas marijuana law, so let’s get caught up to speed.

The new Texas law makes hemp products with 0.3% or less THC legal, whereas such products with greater than 0.3% THC are still illegal. Marijuana is still illegal. (Previously, anything containing any amount of THC was illegal; this relaxes that absolute prohibition, and makes hemp with low THC levels legal.) Sounds like a good thing, especially for farmers—hemp is, after all, a cash crop and now farmers in Texas have the opportunity to grow hemp.

What does this have to do with criminal law? Well, hemp, like marijuana, is a strain of cannabis sativa, and contains some THC (the psychoactive component of marijuana). Given that now hemp can contain up to 0.3% THC, police—or crime labs, more specifically—are now left with the task of determining what the THC concentration of the green leafy substance they find in your car is. You might assume that labs have always been able to determine the percentage of THC in a sample (in an edible, for example) seized by police and sent to a lab. This would be incorrect. Labs can, and have previously, been able to test for the presence of THC—because, recall, previously, any amount of THC was illegal to possess—but they cannot now easily test for the percentage of THC a sample contains. It is far costlier, and more time consuming, for labs to test for the percentage of THC.

So what?

Well, for starters, the field test kits previously used by police to test for the presence of THC in a sample instantaneously are worthless now, insofar as they only detect the presence of, and not the amount of, THC in a sample.

Additionally, the cost (in both dollars and time spent) on testing a small, misdemeanor level of green leafy substances for the THC concentration of the sample might become prohibitively expensive. Consider how many misdemeanor possession of marijuana cases are brought in North Texas. Add extra time and money spent testing every sample for the exact percentage of THC in that sample, and I would not be surprised if the added cost was tens of millions of dollars per county.

Furthermore, assume the county opts not to spend the extra time and money testing misdemeanor samples for the percentage of THC contained therein. Officers would then be forced to testify that the sample could equally be legal hemp (0.3% THC or less) or could be illegal marijuana (greater than 0.3% THC.) Put simply, the officer would be forced to testify that the sample could be illegal, or could be legal. That’s huge as far as reasonable doubt (the standard that must be overcome by the State during any criminal trial) is concerned.

Finally, CBD oil containing not more than 0.3% THC is legal now. A word of caution though, insofar as I would not put much faith in the labels attached to CBD products advertising their alleged level of THC. (Recall that some CBD oil advertises that it “contains no THC”—an impossibility. Multiple analysis of CBD oil have shown they contain significantly more or less, though usually less, THC than advertised.)

But remember: hemp and marijuana are but two versions of the same plant. Marijuana is illegal. Hemp containing not more than 0.3% THC is, now, legal.


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