Marijuana and hemp are almost identical, but the latter has far lower levels of THC.
Legal possession of hemp complicates marijuana arrests and prosecutions because the most widely available technology only tests substances for the existence of the psychoactive chemical THC — not for the quantity of THC that’s present.
Without being able to scientifically distinguish the difference between legally available hemp and illegal marijuana, cases could be hard to prove, Whiteside and Porter maintain.
But the right technology could be coming soon.
Porter said Friday that the GBI hopes to have lab tests to determine THC levels available “by the end of this month.”
The GBI, which has argued that marijuana cases “remain prosecutable” but has not commented on its development of new testing, would likely only be able to take on testing for select high-level cases, Porter said.
But Porter said he and other Gwinnett officials have identified commercially available field tests that could be purchased for use on more routine cases. Demos for such tests could be started soon and, if things go smoothly, they could be ready to roll within a few months, Porter said.
“There never has been anything wrong with the law, it’s the technology,” Porter said. “And now we know the technology exists.”
In the meantime, Gwinnett law enforcement agencies are working to develop a consenus on how to handle marijuana cases. The Gwinnett County Police Department is currently writing citations for misdemeanor possession cases instead of making arrests.
They’re still making arrests for felony violations and Porter’s office is not dropping or declining to prosecuting cases — merely standing pat until better testing is available.
Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, said most jurisdictions appear to be considering marijuana cases on a case-by-case basis until a more permanent fix is found.
“There’s really no point to rushing these decisions,” Skandalakis said.
Lawrence Zimmerman, president-elect of the Georgia Association of Criminal Defense Lawyers disagrees.
“If the state can’t prove that this is legitimately marijuana, then those cases need to be dropped,” he said. “The law requires the state of Georgia to prove beyond a reasonable doubt that whatever contraband that they have confiscated is above that legal threshold to be considered criminal. And if they don’t have the ability to test, then yes, those cases need to be dismissed.”
Maxwell Ruppersburg is the executive director of Reform Georgia, a nonpartisan advocacy group that pushes for change in the criminal justice system. He acknowledged that the developments in Gwinnett were not planned and likely will be short-lived.
But Ruppersburg called Whiteside’s recent decisions “a significant step toward reducing the harmful and disparate impact of marijuana laws in the most diverse county in Georgia.”