The Smith County district attorney will not follow suit with many of the state’s largest counties by making changes to the way it prosecutes marijuana laws.
The passage of H.B. 1325 in the 2019 legislative session has left law enforcement agencies across the state unsure how to move forward with charging and prosecuting marijuana possession because the law legalizes the farming of industrial hemp, which is almost indiscernible from marijuana.
District attorneys in Harris, Tarrant, Bexar and Dallas counties have all announced changes to the way their offices will handle marijuana possession, with many counties opting to no longer prosecute for small amounts.
Smith County District Attorney Jacob Putman told area law enforcement officers during the monthly Smith County Peace Officers Association luncheon that the Department of Public Safety estimates it will take about 10 months to equip their laboratories with what they need to determine the THC content of samples.
“We are still prosecuting,” he said. “Some larger counties say they can’t. I believe that I can, but we are going to have to wait for some of these labs to get up and running.”
Putman reviewed the law with a group of about 100 law enforcement officers and lawyers, and gave them tips on what it will now take to establish probable cause. Because the law went into effect immediately, officers will now have to abide by the changes laid out in the law, which were geared toward agriculture and commerce rather than the criminal code.
Because hemp and marijuana are almost identical, officers can no longer simply say “a green leafy substance” is probable cause for a search, he said.
What they will now need to do is determine if the substance a suspect has is properly regulated hemp.
Growers transporting hemp are legally required to maintain a cargo manifest, which Putman said officers should ask for if they see hemp or marijuana plants.
“If you say, ‘I need to see your cargo manifest’ and they say ‘Huh?’ that’s probably a good time to get them out of the car and start searching,” Putman said. “Someone who has a baggy in the trunk of their Corolla is probably not Farmer Joe transporting hemp.”
He also laid out the penalties for not having a cargo manifest or falsifying one.
Putman said the hemp will most likely be in bales like hay, and small amounts are a good sign it could actually be marijuana. He also told officers that smelling burnt marijuana is still probable cause to search because while the changes to the law do allow some consumable hemp products, they do not allow substances that can be smoked.
Consumable hemp products, such as CBD oil of 0.3 percent THC or less, will need to be properly labeled with a batch identification number, batch date, product name, a URL that provides links to a certificate of analysis, the name of the manufacturer and certification it contains 0.3 percent or less THC.
“If it doesn’t have all of that, it might give you probable cause,” he said.
While samples must be sent to a lab for analysis, Putman is confident they will be able to do so within a year, which is under the statute of limitations of two years for marijuana possession charges.
Putman said that while hemp is legal, it is regulated and he believes that will actually help officers determine probable cause.
“The point is, you’re going to have to be able to articulate these things,” he said.
Putman said the law has some areas of confusion still, which include whether these changes are retroactive or if law enforcement will be able to access the Department of Agriculture database of licensed hemp growers.
He said because the testing will be done at DPS labs, local agencies will not incur more charges to have samples tested, but they will need to wait for the labs to receive the equipment and training necessary, which could cause a backlog.
He encouraged any local law enforcement agencies with questions or concerns to contact his office.