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Texas prosecutors face hemp law dilemma

The cultivation of industrial hemp in Texas became legal in June 2019 when House Bill 1325 was signed into law by Governor Greg Abbott. Dozens of district and county attorneys reacted to the development by announcing that they would no longer prosecute minor marijuana possession cases. However, these prosecutors were not taking a stand about the moral implications of sending individuals to jail for behavior that is perfectly legal in several other states. Instead, they were saying that they will not pursue cases when guilt cannot be proved beyond any reasonable doubt.

The problem facing prosecutors in Texas is that crime labs in the state are not able to establish how much THC a substance sent for testing contains. This means that there is no way prosecutors can conclusively prove that a marijuana possession defendant was caught with marijuana and not hemp. The Texas Forensics Science Commission is working with the Drug Enforcement Administration to develop such a test, but it will not be available until 2019 at the earliest.

The private sector has also developed new marijuana testing protocols. A lab based in Houston says that it is able to break down plant matter and measure THC levels with great precision. The company currently sells its hemp-testing technology to states including Tennessee, Colorado, Oregon and California, and it has offered to sell the machines to Texas.

Experienced criminal defense attorneys may seek to have the charges against individuals accused of committing drug crimes dismissed when forensic testing is inconclusive. This sometimes happens when suspects are taken into custody after police have tested substances using field kits. These kits are straightforward to use and quite inexpensive, but they have been known to be extremely unreliable. Testing kits used by police officers have mistaken benign substances like glazing sugar and baking soda for dangerous Schedule I and Schedule II narcotics.

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