Georgia's New Hemp Law Causing Problems for Prosecutors 

In May, Governor Brian Kemp passed the "Hemp Farming Act," a new law that allows a handful of farmers to grow hemp crops. "Hemp" is considered to be any part of the cannabis Sativa L. Plant and its derivatives with a maximum THC concentration of 0.3%. As a Georgia DUI Attorney, the passage of this law caused me to wonder about its effect on possession of marijuana cases. On Wednesday, I got my answer. 

Gwinnett County Solicitor-General Brian Whiteside dismissed hundreds of misdemeanor marijuana cases on Wednesday and Thursday last week. Whiteside explained that the bill's passage in May led to Gwinnett County Police Officers to stop making arrests for misdemeanor marijuana violations and instead issue citations.

Gwinnett County District Attorney Danny Porter revealed that while he has not made any decisions on how he will proceed with felony marijuana cases, he agrees with Whiteside. Porter contends that the new law contains a significant omission which raises critical questions about how prosecutors in Georgia may continue with these cases. Specifically, the new law does not contain language explicitly addressing possession of hemp by those other than farmers. According to Porter and Whiteside, this makes hemp possession legal by default.

Some may wonder what this new law has to do with marijuana at all. But Porter and Whiteside say this omission compromises a police officers' ability to justify marijuana-related arrests. Indeed, with hemp possession legal, probable cause for arrest based on someone having a "leafy green substance" on their person or smelling like marijuana may no longer be sufficient.

As explained above, hemp may not have more than 0.3% THC. According to the National Institute on Drug Abuse, the average marijuana extract contains over 50 percent THC, with some samples exceeding 80 percent. The amount of THC in a substance is what differentiates hemp from marijuana. However, with hemp possession now "legal by default," officers are having a difficult time telling the difference. The testing readily available to law enforcement can determine whether there is THC is a substance but cannot determine how much. Without the ability to see precisely how much THC is in a substance, it is impossible to differentiate the two.

While Gwinnett is currently the only county that has openly discussed these difficulties, the law is applicable across Georgia. Gwinnett's disclosure may lead more counties to follow suit.

Practice Note

As a Georgia DUI Lawyer, I must remind you that despite the new hemp law causing problems for prosecutors of misdemeanor possession charges, marijuana is still illegal. You can still be prosecuted for a marijuana-related offense, including if you are caught violating Georgia's Drugged Driving law. OCGA § 40-6-391(a) explains that a person is guilty of a DUI if he or she is: (1) driving while under the influence of any drug to the extent that it is less safe for the person to drive; OR (2) if a person operates a motor vehicle with any amount of marijuana or a controlled substance present in the person's body. Because this can be tested by blood and urine, it is not compromised by the visually similar qualities of hemp and marijuana. 

If you have been charged with possession of marijuana or drug DUI in Georgia, you need an attorney who is aware of how the new hemp law may affect your case. Call our office today.