How Texas Accidentally Legalized Marijuana
Is Marijuana Legal? No, but . . .
In an attempt to jump in on the hemp gold rush (i.e. make lots of money) and legalize the cultivation, manufacturing, transportation and sale of hemp products, Texas legislatures have indirectly handcuffed police agencies and prosecutors in their ability to prosecute marijuana charges.
You may have never seen a drug lab report, but as a Cannabis and Criminal Defense Attorney, we have seen many. If there is THC in the tested substance, it is marked positive. In other words the THC is qualified, but not quantified (think pregnancy test, you either are or are not). Currently, Texas law enforcement agencies and their accompanying labs do not possess the necessary instruments to test the amount of THC in any given marijuana product. Without a quantified amount of THC, police and prosecutors do not know if the seized product is in fact illegal marijuana and punishable under the Texas Controlled Substance Act or legal hemp, which has since been removed from the Texas Controlled Substance Act.
District Attorney offices and law enforcement are scrambling (much like Tennessee and Virginia earlier in the year). The hope is to have the necessary marijuana testing equipment in the next year. The reality is it could take substantially longer. It’s also going to cost a lot of money, like a few million.
Other labs (outside of Texas) that can quantify THC, can only do so on a limited basis and this does not include lotions, oils, and edibles. Also for any lab report to be admissible under Texas law, the testing lab has to be accredited by the State of Texas. Currently, we are unaware of any labs capable of testing THC amounts in marijuana that are also accredited.
How Texas counties are handling marijuana criminal charges
To date, Harris County, Ft. Bend County, Waller County, Nueces County, Travis County and Tarrant County have issued public statements they will not be arresting and prosecuting low amount marijuana cases. Felony marijuana amounts, will be looked on a case-by-case basis. Montgomery County, Brazoria County Galveston County, Brazos County, Grimes County and Bexar County have taken the opposite approach, issuing statements they will continue to prosecute all marijuana arrests.
An Accused’s Right to a Speedy Trial.
The problem counties like Montgomery will run up against, is not only the aforementioned marijuana testing and lab issues, but the Constitutional requirement afforded to all accused, the right to a speedy trial. A prosecutor can not ask for a one or two year reset on a case and not violate this Constitutional right . . .if defense attorneys are on their game.
Texas Evidence Requirements for Forensic Testing
Some of these counties have said they will seize the marijuana, hold it, eventually test it and file charges at a later date. This again is likely to have evidentiary problems. Forensic analysis have to meet the requirements set forth by the Texas Court of Criminal Appeals in State v. Kelly. Our belief and with the unexpected twists, turns and newness of it all, proper marijuana testing procedures and protocols are unlikely to be followed, either because it is impossible or because law enforcement agencies won’t know better.
So while marijuana is not legal in Texas, those responsible for arresting and prosecuting have an uphill battle to say the least.
If you need a Houston Drug Criminal Defense Lawyer, contact the Adamo & Adamo Law Firm