Hemp vs. pot: $1 million later, problems still exist
— One year and one million dollars later, new equipment is in place at Ohio Bureau of Criminal Identification laboratories to resolve testing complications that accompanied the Ohio legislature’s legalization of hemp last year.
But that doesn’t mean all is running smoothly in the world of law enforcement.
Senate Bill 57, which went into effect July 30, changed the Ohio Revised Code definition of marijuana to exclude hemp, defined as cannabis containing not more than 0.3% tetrahydrocannabinol, the chemical that produces a “high” among users. With that definitional change, marijuana could no longer be identified conclusively with past techniques such as microscopic examination and chemical color testing.
An apparent inadvertent by-product of the new legislation, however, was that police and BCI chemists were suddenly unable to quickly and reliably distinguish pot from hemp because of the methods and equipment available to them.
Prosecutors and city law directors across the state ordered their police departments to stop making arrests for low-level marijuana use because instruments available to the state to test the green, leafy substance in question were suddenly rendered obsolete by the new hemp law.
Fast-forward 10 months and new testing equipment is now in place that Ohio Attorney General David Yost says will allow for a “quantitative analysis of marijuana in drug evidence” seized by law enforcement. Getting that information into the hands of prosecutors in a timely manner may still prove problematic.
“BCI’s new ability to differentiate between marijuana and hemp creates a valuable resource for officers who depend on our laboratory services, offered at no cost to them,” Yost said in a recent press release. “This major achievement bolsters our reputation as the leading crime lab in the state.”
BCI has completed the validation of new instrumental methods for cannabis vegetation and oils, meeting new legal requirements recently established by Senate Bill 57, the attorney general said.
Steve Irwin, communications officer for the attorney general’s office, said the state provided $968,602 for drug testing equipment at BCI. To date $735,218 has been spent on the instruments necessary to conduct quantitative analysis. An additional $232,864.31 is being encumbered via purchase order to purchase additional drug testing equipment.
BCI also continues to pursue additional validation studies regarding edibles and other THC-infused food products, Irwin noted.
Cities react
Columbus was one of the first municipalities in the state to stop prosecuting low-level pot cases when hemp was legalized. Following Yost’s announcement, City Attorney Zach Klein told Cleveland.com he is not changing his policy and will not pursue lowlevel marijuana cases.
“Our decision to stop prosecuting low-level, misdemeanor marijuana possession was based on many factors, including the lack of testing capabilities at the time, our city council’s decision to institute a low-dollar fine for violations, and overall disparities and inequities in the criminal justice system,” he said. “If anything, in light of the spread of the coronavirus in our jail and prison system, we believe our policy reflects a real-world approach that focuses on incarceration for only those that should be behind bars.”
The city council in Cleveland voted in January to end all penalties for possession of up to 200 grams, or just over 7 ounces, of cannabis, effectively decriminalizing marijuana in Ohio’s second-largest city.
Under state law, possession of up to 100 grams of cannabis except by registered medical marijuana patients is subject to a fine of up to $150. Being caught with 100 to 200 grams of pot is punishable by up to 30 days in jail and a fine of $250.
Van Wert City Law Director John Hatcher said last August that no citations for low-level pot possession would be issued by city police in the wake of the state’s legalization of hemp, noting that police would merely confiscate any contraband items found. With new tests at the city’s disposal, Hatcher said existing marijuana laws will be more strictly enforced.
“With the confusion after the legalization of hemp was approved I didn’t want to put our officers in the position where we didn’t have the ability to differentiate between marijuana and hemp,” Hatcher said. “I didn’t want to waste my time or the officers’ time or the court’s time. I have too much respect for them to do that.
“With the new equipment in place, that changes things,” Hatcher said. “The law is the law. As long as our officers have access from BCI to get evidence tested in a timely manner, then yes, they have the go-ahead” to make arrests.
Another issue, however, could stand in the way of such prosecutions.
Over the past 12 months, the average turn-around time for BCI’s chemistry section to return evidence is 33.8 days. The turn-around time for marijuana quantitative analysis is anticipated to be near that number, according to a spokesman for the attorney general’s office.
For Hatcher’s purposes, “that doesn’t cut it.”
He said that for a misdemeanor possession charge prosecutors have 30 days from the time of arrest to bring a defendant to trial. “The math doesn’t work” when it comes to a wait of 34 days to get that evidence back from a state laboratory, the law director said.
While the decision by lawmakers to legalize hemp had a temporary impact on how laws are enforced, Hatcher believes it’s the novel coronavirus that will have a more long-lasting effect.
“COVID-19 changed everything,” Hatcher said. “Will it change how law enforcement does its job? I don’t know. It could.”
Hatcher said people need to understand the significance of what is happening around them. “We’re living through history, like it or not,” he said. “People are going to adjust ... they always do; even if it’s sometimes kicking and screaming.”
Lima City Law Director Tony Geiger predicted last August that new tests to adequately test for marijuana would be “months and months away” and that the turnaround time for evidence would be lengthy once the new equipment was in place.
In the meantime, Geiger said, the city would look at minor misdemeanor marijuana possession cases on a case-by-case basis. He said police who encounter individuals with a small amount of marijuana in their possession “will have to decide if they have sufficient other evidence (besides the current methods of testing) that it’s marijuana.”
Ricky Eddy, the city’s chief prosecuting attorney, earlier this week said city police “never stopped making arrests” for possession of small amount of marijuana even when state testing was unavailable.
“There were discussions about that, but it (pot possession) is still illegal, and if you take an oath then it’s up to you to enforce the law,” Eddy said.
Now that BCI labs are able to differentiate hemp, Eddy said the new issue for police and prosecutors is the turn-around time for state testing results. “With a 30-day window to bring someone charged with a minor misdemeanor to trial, we need a quick turnaround on evidence,” he said.
Because such low level charges do not carry jail time, Eddy said the emphasis for police has remained on apprehending persons with larger amount of marijuana in their possession.
“You have to have more than 100 grams (of pot) for it to be a jail-able offense, and 100 grams is a lot,” Eddy said. “The overwhelming majority of stops were make involve ‘personal use’ amounts of marijuana.”
Following the legislature’s legalization of hemp last summer, Allen County Prosecuting Attorney Juergen Waldick said he had not directed the sheriff ’s office to halt arrests for marijuana possession.
“I’m not going to tell them not to make arrests, especially if we’re talking about large amounts (of marijuana),” the prosecutor said. “At the same time, I don’t think it’s economically feasible when it comes to minor misdemeanor arrests.”