Last legislative session, the Texas legislature decided to follow federal law and say that hemp is legal, provided it has less than 0.3% of TCH by dry weight. The problem is this definition fails to completely understand the chemistry involved, and it ignores the federal regulations that call for taking into consideration the range of uncertainty in the analysis.
Before your head starts spinning and you decide – wait, I thought you were a lawyer, and not a chemist or statistician, I am going to go elsewhere, let me start off by saying that if you are stopped for some reason, and a police officer asks – is that weed, or marijuana, you 1) do not have to answer, and 2) you can answer by saying I don’t know. Let me explain why you can say I don’t know – simply put, did you conduct a chemical analysis of the plant to determine if the concentration of THC was greater than 0.3% of the total weight? I thought not.
If for some wild reason you happened to have a chemical analysis of your plant based smoking material, my next point is – do you really understand the results of that analysis, including the standard deviation that the result has, and how certain testing methods can adversely skew the results? Absent such knowledge, let me try to discuss why the standard of deviation is important before shifting ever so superficially into discussing isomers, delta 9 THC and flame ionization.
Every report that comes out of a state crime lab has a range that their findings fall into. Whether they are testing for alcohol, THC, or some other substance, the report will always indicate that there is some type of range, or standard deviation, to their findings. For instance, if the test says that the blood alcohol analysis results are .092 % with a range of plus or minus .02, that means the blood alcohol could be as low as .072, or as high as .112. If they say that the THC in a plant is .35% with a range plus or minus .06, that means the THC level could be .029 or .41. If it is .29, it is considered hemp under federal law, and the definition that Texas passed.
The problem is that Texas decided to NOT follow federal law and include in the legislation, or rules, the idea that if the range of uncertainty includes a legal limit, then the presumption is that it is legal. See 7 C.F.R. § 990.1. This means that prosecutors in more conservative jurisdictions can go ahead and prosecute you for possession of marijuana under state law, even though the feds say that it is not. While some armchair lawyers may be thinking, “wait, federal law is the supreme law of the land, this position fails to grasp the simple fact that state drug laws and federal drug laws are controlled by two different sovereigns and just because a state makes something legal does not make it legal under federal law, and vice-versa”. So, those states where marijuana is legal do not preclude federal prosecution for possession of marijuana, and just because federal law says it is hemp, does not necessarily mean a state will consider it hemp.
With that said, as we sit here today, if you happen to have less than a few ounces of plant based material that may or may not be hemp, the Texas Department of Public Safety – the agency that runs the state crime labs – indicated that they were NOT going to test for THC levels in misdemeanor cases because they did not have adequate funding to conduct the tests. This does not mean that possessing misdemeanor levels of marijuana is legal in Texas, it merely means that the DPS crime labs are not going to test those samples.
Since that announcement some conservative counties, either through their sheriff’s office or their prosecutor’s office, have been trying to “form partnerships” with private labs to conduct such tests. While they may think that this will solve the problem from a prosecutorial standpoint, the issue then becomes one of chemistry – what type of test was used, and did it account for the various isomers and types of THC? Depending upon the answers, your plant based material may or may not be marijuana. Also, depending upon what was weighed – the entire contents of the baggie, or just the leaves – without the stems and seeds – there may or may not be a sufficient amount to support any type of possession charge that you face.
I say all of this so that you will remember one very simple thing – absent you being a chemist, and having some state of the art equipment with you when stopped, you really don’t know if it is hemp, marijuana, or some other type of substance. As such, when asked “What is it?”, just respond with a simple “I don’t know”. While the police may continue to ask you questions – Why are you smoking it?” “What you mean you don’t know?” etc. Leave it at a simple “I don’t know” and stop answering any questions. You do have the right to remain silent – so please exercise that right.