by Houston Criminal Defense AttorneyHow 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
by Houston Criminal Defense AttorneyBill passes in favor of Hemp CBD Products
Is hemp legal now? the Drug Enforcement Agency’s (DEA) and the Food and Drug Administration’s (FDA) responses will tell.
*Update: December 21, 2108: the FDA is on the record saying until the new regulations (Farm Bill Act) officially take effect, the FDA will continue strict enforcement of all cannabis products. The good news for those in the hemp industry is the FDA is open to start looking more closely at CBD, including steps toward the lawful marketing and selling of the products.
by Houston Criminal Defense AttorneyCBD Oil, is it Legal? It’s complicated – CBD Oil Lawyer
CBD Oil, is it Legal? It’s complicated – CBD Oil Houston Lawyer
What is CBD Oil?
CBD oil (cannabidiol) is one of over 113 known cannabinoids found in the cannabis plant. What it lacks in psychoactive effects, it makes up for in health benefits and can assist in treating such ailments as: seizures, anxiety, depression, arthritis, sleep deprivation and PTSD. To date, CBD Oil remains unregulated by the Food and Drug Administration causing wide discrepancies in the product’s ingredients and quality. This matters, because it is how the oil is processed that impacts its legality.
Is CBD Oil Legal?
Before diving into the legality of CBD Oil under both federal and state law, we must understand how the two regulatory bodies interact. Federal law applies to the nation as a whole, whereas state law applies only to that particular state. Simple enough.
The supremacy clause says that if federal and state laws clash, federal law prevails. So, if a there is a contradiction between federal and state law, when you are in the state you can follow the state law, but the feds can still pick you up if the activity is illegal under federal law.
What Is CBD Oil legal under Federal Law?
Yes, if it is produced within federal guidelines. For CBD oil to fall within the DEA’s guidelines it must “consist solely of parts of the cannabis plant excluded from the Controlled Substance Act of marijuana.” That is, it must come from the “mature stalks of such plant, fiber produced from such stalks, oil or . . . and other . . . derivative, mixture, or preparation of such mature stalks.”
What Is CBD Oil legal under Texas Law?
CBD is legal at the state level where marijuana is legal for recreational use (e.g. Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states (and counting) have made marijuana legal for medicinal use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. Remember though, under federal law there are strict guidelines, so the CBD oil with higher concentrations of THC may be legal in Colorado, but illegal under federal law.
Is CBD Oil Legal in Texas?
No, unless you fall within the qualifications set by the Compassionate Use Act. That is:
- You possess CBD Oil in conformity with Texas State Law (made from the mature stalks of the Cannabis sativa plant); or
- You are prescribed the use of medical CBD oil and
- You use “low-THC” CBD.
Texas defines “low-THC cannabis” as having no more than 0.5% THC. In contrast, the feds define “low-THC cannabis” as having no more than 0.3% THC.
If you don’t fall within this exemption then possession of CBD oil containing any amount of THC is against Texas law and you could be punished up to 180 days in jail and/or up to a $2000 fine. That being said, our Houston CBD Oil Lawyers have received phone calls from persons accused of possessing CBD Oil who have initially been charged with felonies. This is because authorities are often unsure what the oil is.
In the end, be careful out there. Know what you are purchasing and even more importantly know what you are putting in your body. CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. If you choose to indulge, look for a products advertised as “industrial hemp” or “mature hemp.”