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What Does Hemp Farming Mean for Georgia Criminal Marijuana Enforcement?

Posted by Sean A. Black | Dec 26, 2018 | 0 Comments

Federal and state legislation is opening up a new crop for farmers: industrial hemp.  This is going to be a challenge for law enforcement and the criminal justice system in states, like Georgia, where marijuana continue to be illegal.

What is Industrial Hemp?

Industrial hemp is another term for Cannabis Sativa.  Guess what, marijuana is typically either cannabis sativa or cannabis indica.  So, marijuana and industrial hemp are the same plant.  They are the same genus and species, to use scientific terms.  The plants are identical, except that industrial hemp has a restricted level of delta-9 THC, the psychoactive part of the plant.  

The plant and its leaves, stems and seeds are identical.  Only through laboratory testing can it be determined if the plant material is hemp or marijuana.  This testing will be either gas (GC) or liquid (HPLC) chromatography.  The level of THC in hemp must be below 0.3%.  Labs will have to test for THC-A (the acidic form of the chemical which is produced once the material is heated.  

Industrial hemp will be required to be grown in designated and registered locations.  

Hemp is used for a variety of purposes.   The stalk material can be used for textiles, building materials, mulch, fuel, paper and many more uses.  The seed can be used to make human food and beverage, to produce salad oil, personal care products, and industrial oils, paints and solvents.  The leaves and flowers have medical uses and can be used to manufacture herbicides and insecticides.  

The highest value uses are the ones for the CBD marketplaces.  

Non-Lab Testing is Likely Gone

Law enforcement have used a variety of means to field test marijuana in plant form.  All of these methods are less than specific and less than precise.  

Georgia has been using a combination of three non-laboratory testing.  The combination includes the Duquenois-Levine reagent test, the Fast Blue B test, and microscopic examination.  The theory has been that even though each of these methods is deficient by itself that it is unlikely that a non-marijuana plant material would test positive with all three of the tests.

Industrial hemp changes all of that.  It will likely test positive for both reagent tests and will certainly be consistent with the microscopic examination.  

Already, South Carolina Law Enforcement Division (SLED) has discontinued its marijuana analyst certification program.  The SLED certification involved the use of the Duquenois-Levine reagent test and microscopic analysis, apparently excluding the Fast Blue B test.  

It is likely that Georgia will have to re-examine its own Marijuana Analyst certification program.  It is hard to see how Georgia courts could continue to rely on non-laboratory testing of marijuana when a state-allowed legal product would test positive on all three tests.

Field Testing May Persist

Although, the reagent tests and microscopic examination may no longer be sufficient for forensic proof of illegal marijuana, law enforcement can continue to use such testing in terms of establishing probable cause.  Since growing of hemp will be tightly regulated, there will still be repercussions to growing cannabis sativa in locations other than regulated and designated fields.  

The biggest issue will be with plant matter and products.  Such items can still be field tested to identify as cannabis, but will then need to be laboratory tested to determine the level of marijuana for court proof.  However, the field testing will likely be sufficient, in combination with other observations, to establish probable cause.  

Source Matters

The federal farm bill made industrial hemp legal and preempts portions of the Controlled Substances Act.  This means that CBD oil sourced from industrial hemp is legal under federal law, but CBD oil sourced from marijuana is not.  

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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