Police across the country are now struggling to differentiate between the smell of hemp and marijuana. In Texas, as in Georgia, hemp can only be differentiated from marijuana by its concentration of tetrahydrocannabinol, or THC.  THC is the active chemical present in marijuana which produces intoxicating effects. Hemp also contains THC, although at very low concentrations.  The THC in hemp cannot exceed 0.3%.  THC in marijuana can be between 5% to 35%.  Hemp and THC are products of different strains of the cannabis plant.  The plant is otherwise identical except for its THC concentration.

With the same odor of burning marijuana and hemp, officers and drug dogs face challenges in establishing probable cause during searches. In Colorado, where marijuana is legalized, the Colorado Supreme Court has ruled that police officer have to establish probable cause before using a drug-sniffing dog. Even so, drug dogs cannot differentiate between marijuana and hemp.

In Texas, police officers are now being trained to not necessarily rely on the odor of marijuana for probable cause. Austin Police Assistant Chief Jennifer Stephenson said, there are other indicators detailed in the car and driver that can lead to a search and probable cause. However, with the legalization of Hemp, local law enforcement navigation to making an arrest, searches and probable cause are unclear. For instance, if a substance is present which could be either hemp or marijuana, the officer might look for evidence which indicates that the substance is being used to get high.  Since hemp does not have sufficient THC to get a person high, hemp would not have those types of things present.  

With the new law, law enforcement officers will have to adjust to the new norm. On the roadside, officers cannot determine whether a substance contains enough THC to be illegal, thus lab rwarinf will be required. 

In Texas, the state crime lab is months away from having the capability to test substances to determine the THC level present.  In addition, the cost of and the length of time involved with lab testing will make it less desirable to test small quantities. 

On May 10, 2019, Georgia Hemp Farming Act has gone to effect, and the growing Hemp laws will only increase. If you have been arrested for a drug charge or DUI charge, Sean Black is the lawyer for you. Call us today at 706-282-4696 to book your free consultation. Find out how we can help you.