What is marijuana and how does it differ from hemp?
Both marijuana and hemp are the exact same plant, cannabis. The cannabis plant can be grown with or without a discernable level of THC, the chemical that makes people high. After harvesting, hemp looks like, feels like and, more importantly, smells exactly like marijuana. They are the same plant. One expert describes the difference between hemp and marijuana as similar to the difference between decaffeinated and caffeinated coffee. The two coffees look, smell and taste basically the same because they are both coffee. Without testing (or using I suppose use), police cannot know the difference between hemp and marijuana.
In 2018, the federal government passed a Farm Bill which made hemp a legal crop. Hemp is used in textiles, fabrics, and paper. Cannabidiol extract (CBD), a non-intoxicating extract of the cannabis plant, is used in food and health care goods such as supplements for humans and pets and oils for pain relief. The federal government made the distinction between hemp and marijuana based on the amount of THC content, with the highest legal level being 0.3 percent. In order to know what is legal and which is not, one has to determine the THC content. Until the states can test for THC content, massive difficulties are a hurdle for state marijuana prosecutions.
The private sector quickly adapted to be able to test THC levels so that hemp producers could assure their crops were legal. However, governmental agencies are behind the curve and unable to determine accurately the difference between hemp and marijuana. The problem is multiplied when it comes to testing pastes, food additives, waxes and even hemp cigarettes (that look just like an old fashioned joint).
Effect on Police Searches of Vehicles
While the government struggles with basic testing in criminal prosecutions, the issue brings about more serious questions about whether or not police can now continue with their wholesale searches of every automobile in which they think they smell “cannabis”, or marijuana. In my practice, I see hundreds of non-consensual searches of citizens cars based on an alleged smell of marijuana. Citizens are detained and their privacy invaded based upon the smell of what now may be a legal substance. As a constitutional advocate and criminal defense lawyer, I advocate that the legalization of cannabis (with low THC levels) should eliminate the wholesale searches of citizen’s cars on the dubious grounds of the smell. I have witnessed firsthand the abuses that can come when the allegation of the “smell of marijuana” is accepted in court as grounds for a search. I have watched judges turn a blind eye to fabricated smells, when the only marijuana was a few grams in a bag, inside a locked box, inside the closed trunk of an injured veteran. The judge blindly accepted the “I smelled marijuana” claim and allowed the search of soldier‘s car. If this legalization does nothing other than prevent this abuse, it is worth the battle. Certainly, officers do smell cannabis but, with legalized cannabis, even legitimate smells may no longer produce reasonable grounds to support a search.
Issuing a Warrant Based on . . . What?
The second impact comes when police find cannabis, can they make an arrest for marijuana? Without the ability to test onsite for THC levels, they can’t know if it is legal hemp or marijuana. Without this knowledge, can they make an arrest and can a magistrate issue a warrant? My firm will be using this uncertainty to challenge over-reaching governmental searches, seizures and arrests in effort to preserve our client’s and the public’s constitutional rights to be free from unreasonable search and seizures. Another hurdle is the State’s ability to determine THC content in laboratory testing. While the state is currently behind, private testing is available and eventually the state will catch up with its testing capabilities. This will allow marijuana prosecutions to resume full scale. This issue will eventually be resolved, which is why we believe the real change from legalized hemp (including CBD oils, pastes and all other utilizations) will come from its effect on warrantless searches and arrests at the scene when officers can’t accurately determine whether a smell or substance is legal hemp or marijuana.
Finally Taking Hemp off the Trash Heap of Fear and Ignorance
The world is changing. Farmers are making real money growing hemp, a product with industrial, environmental and medical uses. These uses have been thrown to trash heap for years over the fear of the evils of marijuana. None of the issues above even touch the issue of whether marijuana should be legal. This article does acknowledge legal uses of cannabis and how this legalization effects the millions of arrests and searches that occur yearly. More to come in the battle for freedom…
In defense of the citizen accused,