Prosecutors say they don't have the technology to be able to tell the difference between illegal marijuana and legal hemp.

Citing Georgia hemp law, Gwinnett solicitor dismisses marijuana cases

The top prosecutors in Georgia’s second-largest county believe that the state’s new Hemp Farming Act has compromised their ability to prosecute marijuana cases, raising questions about the unintended — and statewide — implications of a law meant to help farmers jump into a burgeoning industry.

Gwinnett County Solicitor General Brian Whiteside, whose office is responsible for prosecuting misdemeanors, has already begun dropping marijuana cases brought forward since the law was signed in May. The Gwinnett County Police Department is, for the time being, writing tickets for misdemeanor marijuana violations rather than making arrests.

And while Gwinnett District Attorney Danny Porter has not yet made any sweeping decisions about how to proceed with felony marijuana cases, he said a key omission in the new law raises serious questions about how district attorney offices across Georgia can move forward with cases.

Hemp is almost identical to marijuana but with much lower levels of the psychoactive chemical THC. The legislation Gov. Brian Kemp signed into law allows the state to license a handful of Georgia farmers to grow and process hemp, a versatile crop that’s used to produce increasingly popular lines of products.

What’s not in the law, Porter and Whiteside contend, is language explicitly addressing hemp possession by everyday Georgians — making it legal by default.

Porter and Whiteside both said that raises questions about police officers’ ability to justify marijuana-related arrests. Predicating arrests and prosecutions on someone possessing a “leafy green substance” or smelling like marijuana may no longer be enough if low-THC hemp can be legally possessed, they said.

Gwinnett County District Attorney Danny Porter at a court hearing on Thursday, May 9, 2019. HYOSUB SHIN / HSHIN@AJC.COM
Photo: The Atlanta Journal-Constitution

And the tests most readily available to local law enforcement determine only if THC is present, not the quantity of THC that’s present. And that makes it all but impossible to differentiate marijuana from hemp, they said.

“Marijuana is still illegal,” said Porter, a longtime Republican who has considered running for re-election as a Democrat. “But the case can’t be proved in court right now.”

Others found more nuanced phrasing, but acknowledged the potential complications.

“It’s just that prosecutors will have to prove an additional element (of evidence) if an argument is made that industrial hemp somehow prevents enforcement of the criminal marijuana law,” said state Rep. Chuck Efstration, R-Dacula.

Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, said the Hemp Farming Bill makes prosecuting marijuana cases “difficult but not impossible.” He said his agency has been aware of the potential complications and had previously suggested language addressing them be included in the bill.

The PAC is in conversations with state officials to find a remedy to the situation, whether through a legislative fix or new field testing, he said.

The council is currently advising prosecutors and law enforcement officers to consider each marijuana case individually.

“Our advice is to do what they typically do on a day-to-day basis,” Skandalakis said, “which is deal with each case on a case-by-case analysis, see what evidence you have and go forward with those cases you can make out.”

GBI spokeswoman Nelly Miles said decisions will be left to officers and prosecutors, but that the agency believes marijuana cases “remain prosecutable.”

She did not comment on other officials’ suggestions that the GBI was working on developing a new, more widely available field test to determine THC levels.

The governor’s office declined to comment.

The Attorney General’s office said Thursday it had not received a request for a formal advisory opinion to resolve questions about the law.

Georgia Gov. Brian Kemp. Bob Andres / bandres@ajc.com
Photo: The Atlanta Journal-Constitution

In Gwinnett, solicitor general Whiteside issued a memo Wednesday declaring his office would no longer prosecute misdemeanor marijuana cases. He said he dismissed more than 100 cases on Wednesday and was working on more Thursday.

“We could’ve kept it under wraps, but then it would’ve been an abuse of power and it would’ve been unethical,” Whiteside, a Democrat and former police officer, said. “If it was up to me we would’ve continued prosecuting it. But it’s not up to me. It’s up to us being moral and fair.”

Whiteside, Porter and local police chiefs are scheduled to have a meeting Friday morning to develop a consensus about how to move forward. A spokesman for the Gwinnett County Police Department, which serves the majority of the county, said the agency is also continuing to research the issue.

“While this research is ongoing, GCPD will issue citations for misdemeanor amounts of marijuana rather than make custodial arrests; this temporary measure will be reassessed as needed,” Cpl. Jake Smith wrote in an email.

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