Can cops tell the difference between hemp and marijuana?
In most cases, the answer is no – hemp looks like marijuana, smells like marijuana, and they don’t have a field test to determine the THC content. The difference between the two is that industrial hemp cannot contain more than .3% THC – nowhere near enough THC to get a person high.
Since hemp farming is legal under federal law and SC state laws, you cannot (should not) be arrested for possession of a “green leafy substance” unless there is evidence that the “green leafy substance” contains more than .3% THC. Do they have a roadside test to determine the THC content of that green leafy substance the cops just pulled from your glovebox?
In some states, police are no longer arresting people for misdemeanor marijuana possession, citing an inability to precisely test the THC content of the green leafy substances they have confiscated from people.
In South Carolina, however, police are not only still making marijuana arrests, but they have also threatened to arrest store owners and consumers for possessing smokable hemp.
Isn’t hemp legal now? If it is, why were SC cops confiscating it from CBD stores?
Can SC cops tell the difference between hemp and marijuana? If not, why are they still charging people with marijuana possession?
Can Cops Tell the Difference Between Hemp and Marijuana?
Police in Georgia, Ohio, and some other states have announced they will no longer make misdemeanor marijuana arrests because they do not have the technology to reliably determine the THC content of that baggy of “green leafy substance” they found in your pocket.
South Carolina police, on the other hand, are saying they do have the technology, but the tests will have to be performed in a lab. Also, there will be delays in testing…
Georgia Police Stop Arresting People for Misdemeanor Marijuana Possession
The Gwinnett County, Georgia’s Solicitor’s Office announced in 2019 they would no longer prosecute any marijuana cases until the legislature makes changes to their Hemp Farming Act:
Field tests for officers are still unavailable, Miles said, leaving them with the issue in misdemeanor cases.
The solicitor’s office, which handles misdemeanors, has already dismissed more than 140 marijuana cases in Gwinnett. Misdemeanor marijuana cases from May 10 onward will not be prosecuted, Whiteside said.
Cobb County, Georgia says they have a similar problem:
The Cobb County Police Department joins a growing list of departments that will no longer arrest people for misdemeanor marijuana possession.
Gwinnett County and Duluth police had already announced earlier this week they won’t arrest for misdemeanor pot possession.
This is all because hemp is now legal in Georgia but law enforcement said there is no certifiable test in Georgia that can tell the difference between hemp and marijuana.
All the departments will still make arrests for felony amounts of marijuana. That’s anything more than an ounce.
If they aren’t sure whether that “green leafy substance” is hemp or marijuana, how do they know they are not confiscating and destroying someone’s perfectly legal hemp product? Isn’t that theft by the police?
Ohio Police Stop Arresting People for Misdemeanor Marijuana Possession
Prosecutors in Ohio announced in 2019 that the new hemp laws have effectively legalized marijuana in their state:
The head of the Ohio Prosecuting Attorneys Association agreed that the hemp law in effect “legalizes marijuana in Ohio … for a time…” the bureau is recommending prosecutors “suspend identification of marijuana testing” and not indict “any cannabis-related items.”
Why? Ohio authorities have also concluded that they cannot tell the difference between hemp and marijuana, even when a crime lab does the testing:
The state passed a law July 30 legalizing hemp by changing the definition of marijuana to exclude hemp, based on the amount of THC, which is the chemical that gets people high. A THC level of 0.3% or less is legal hemp, while a THC level over 0.3% is marijuana, which is still illegal in Ohio — though medical marijuana dispensaries are legal in the state…
“Now we have to be able to distinguish the difference between hemp and marijuana,” Jason Pappas, vice president of the Ohio Fraternal Order of Police, told WBNS-10TV. “That … has to be done through crime analysis.”
But most crime labs in Ohio can’t detect the quantity of THC in marijuana.
Who can tell the difference between hemp and marijuana?
South Carolina Police Continue Making Marijuana Arrests
Despite an inability to tell industrial hemp from marijuana, SC police in Myrtle Beach, Conway, and other parts of the state continue to charge people with misdemeanor marijuana offenses, and prosecutors continue to prosecute them.
South Carolina, a state known for its scientific and technical expertise (ahem, cough), in 2019 said they had acquired “a new method of quantitative analysis of THC” (that for some reason Ohio and Georgia do not have access to) that will allow us to test for THC content and continue to arrest people for possessing small amounts of marijuana:
…SLED issued a memo announcing a new method of quantitative analysis of THC, a more involved test that can only be performed by trained chemists using a specialized instrument. Officers were told to discontinue the prior method. As a result, cases must be sent to SLED’s laboratory or to one of the 14 municipal and county drug labs around the state — if chemists there adopt the new procedure.
Hughey said it will be up to individual solicitors to decide whether pending criminal cases involving marijuana that was tested with the old method will be reanalyzed.
Since SC cops can tell the difference between hemp and marijuana (according to SLED, anyway), you should be okay if your baggy of stinky plant material contains less than .3% THC, right?
Not so fast – police in SC apparently want to arrest people for the nonexistent crime of possession of hemp as well…
South Carolina Police Want to Arrest People for Hemp, Too
Hemp farming and hemp products are now legal under federal law and SC law, but, apparently, SC law enforcement is not having it. If it looks like a duck, walks like a duck, and quacks like a duck, it must be marijuana…
Police in some areas of the state have raided CBD stores and smoke shops and confiscated smokable hemp – hemp product that contains less than .3% THC that is sold for its CBD content.
Despite SLED’s announcement that they have a test for THC content, for example, Greenville police took hemp off the shelves in Greenville County if they test positive for any amount of THC:
“The problem with this type of incident is that (if) it smells like marijuana, looks like marijuana, and field tests for the presence of THC, we must act as it is marijuana and make a seizure,” [the Sheriff’s Office spokesman] said in an emailed statement sent Monday morning.
Wait, what? If we don’t know whether a thing is illegal, we must assume it is illegal and take it? Taking an item off the shelves in a store without any evidence that the item is illegal = theft. Is there any liability for the damage and lost profits caused by the “hemp police?”
Isn’t smokable hemp legal? The Attorney General has said he doesn’t know.
It is unlawful to possess unprocessed hemp without a license. What is unprocessed hemp, though? The AG says that is up to law enforcement to decide, which is why they are now taking the liberty of stealing smokable hemp off the shelves of legitimate businesses…
The AG is right that the SC hemp law says, “[u]nprocessed or raw plant material, including nonsterilized hemp seeds, is not considered a hemp product.” But what does “unprocessed” mean?
The definitions are right there in the statute – “raw plant material.” The statute also defines “processing” as “converting an agricultural commodity into a marketable form.” Is smokable hemp “raw plant material?” Or has it been “converted into a marketable form?”
It seems simple enough. You can’t smoke the “raw plant material,” and therefore stores are not selling “raw plant material” to consumers. The flower, or buds, on the plant are harvested, trimmed, dried, and cured to convert it into a marketable form before it is packaged for sale.
The plain language of the statute says that processed hemp (smokable hemp) is legal. You can’t get high from smoking it anyway – why are police so determined to prevent stores from selling it?
Marijuana (and Hemp) Defense Attorney in Myrtle Beach
If you have been charged with possession of marijuana in Myrtle Beach, SC, or the nonexistent criminal charge of “possession of hemp,” do not plead guilty.
Whether it is the legality of the substance that was confiscated, the inability of SC law enforcement to test the substance, or traditional marijuana defenses, you most likely have options. Call me at 843-492-5449 or fill out our contact form to set up a free consultation to discuss your case.