For the last two months, dozens of county and district attorneys in Texas have not prosecuted low-level marijuana crimes. That’s because they lack a reliable and affordable way to distinguish between marijuana and hemp, which was just legalized.
But the Texas Forensics Science Commission has worked with the federal Drug Enforcement Agency to come up with a new method of testing that could be available to prosecutors by early 2020.
Law enforcement — using probable cause to search a person or their vehicle — must first prove that the substance in question has the look and smell of marijuana. That has become complicated by the fact that legal hemp can have the same look and smell.
A cop's next step would be to test the product to determine if it is in fact marijuana. That used to be a simple process.
Lynn Garcia is director and general counsel for the Texas Forensics Science Commission. She said before the new law, marijuana arrest reports only had to prove a cannabinoid was present in any form. Now, they have to show a substance has a THC concentration above 0.3%, the legal limit for hemp.
“The end user, which is the criminal justice system and the prosecutors who receive those reports, said we need to know the quantity to establish what’s legal and what isn’t,” Garcia said.
Garcia has worked with the DEA to figure out how best to test for THC concentrations when there are many different levels out there. For instance, under Texas’ compassionate use program, patients can possess CBD oil with up to a 0.5% THC concentration, which is above the legal limit.
That’s why they came up with a THC concentration test that can identify the difference between legal hemp and marijuana in most circumstances. That number is a 1% concentration.
“Their laboratories had validated a qualitative method. They distinguish it at a 1% mark where they will tell the end user, ‘This is positive for marijuana,’ if the THC levels are 1% or above. In most marijuana cases the THC levels are much higher,” Garcia said.
The Forensic Science Commission is working with researchers at Sam Houston State University in Huntsville to see if this new method of testing will work before issuing new guidance to crime labs throughout the state.
And while crime labs wait on this new testing method to be approved, there are private labs who are marketing themselves as another solution to the testing dilemma.
Ionization Labs in Austin is one of those companies. Chase McMichael is their chief science officer, and explained how their patented machine, called CannID, works.
“CannID not only allows us to process materials, oils and flowers, but it allows us to report very accurately the breakdown of all cannabinoids in percentages,” McMichael said.
He tested a sample that showed a 0.21% concentration: legal hemp.
The company currently tests hemp crops and hemp derived products for out-of-state businesses in Oregon, Kentucky, Tennessee, California, Colorado, Virginia and North Carolina.
Cree Crawford is CEO and cofounder of Ionization Labs. He said they’ve offered to conduct some of the testing for crime labs in Texas — or lease them the equipment.
“Our background and expertise is in cannabinoid testing, so we’re drawing from that expertise. But as a home state focus we want to streamline that process whatever that is, and it’s still being mulled over,” Crawford said.
The state and counties have already released their two-year budgets and it’s unclear if there will be money to pay companies like Ionization Labs for this kind of work.
Meanwhile, The Texas Forensic Science Commission plans to have its new testing method approved by early 2020.
DAs across the state hope they will have a solution to the marijuana-hemp testing issue in place by then.