AG: Marijuana prosecutions likely need special testing after hemp legalization

A change in the law that exempts hemp from the legal definition of marijuana means prosecutors should use more sophisticated lab tests to determine if suspected marijuana has the requisite concentration of THC to qualify as contraband, the Maryland Office of the Attorney General has advised.

But some defense lawyers say such hurdles should deter prosecutors from even bringing marijuana cases — not serve as a reason for jurisdictions to buy expensive testing equipment or to pay close to $200 to send a sample out of state for testing.

Legislation passed this year to allow for the commercial production of hemp — defined as the plant Cannabis sativa L. with a maximum THC content of 0.3% — exempts the substance from the criminal law definition of marijuana. The new definition of marijuana went into effect June 1.

But Maryland crime labs, like many around the country, are not equipped or certified to measure the concentration of THC in suspected marijuana and therefore cannot technically differentiate between marijuana and hemp, officials say.

Del. Erek L. Barron, D-Prince George’s, sent a letter to Maryland Attorney General Brian E. Frosh in early October asking for advice or guidance on what the altered definition means for police and prosecutors.

Frosh’s office responded Monday and concluded the law change “would appear to impact the State’s burden of proof in establishing a criminal or civil violation for marijuana possession” and, as a result, the state “likely would have to demonstrate” that the THC concentration in the seized material exceeds the lawful concentration allowed in hemp.

Direct evidence that the substance is marijuana calls for quantitative testing, Assistant Attorney General Jeremy M. McCoy wrote, and in most circumstances that testing should be done at the outset — because identifying the substance as illegal is an element of the crime — rather than requiring a defendant to raise an affirmative defense that the substance is hemp.

Barron said national standard for prosecutors require them to bring a case only if they have the evidence to prove the charges.

“There’s not supposed to be a game of chicken,” he said. “You either have what you need or will have what you need or you don’t.”

Barron said he hopes Frosh’s letter informs members of the bar about this issue so they can fully advise their clients who are charged with marijuana possession.

“It educates, and that’s the primary thing that I think needed to be done,” Barron said.

A spokeswoman for the Attorney General’s Office declined to comment Tuesday, saying the office would let the letter speak for itself.

Prosecution policy

As police and prosecutors work to establish policies for marijuana cases, some say the complications and rising costs of pursuing the cases are not worth it.

“Rather than try to parse out how to prosecute the declining number of instances in which THC is criminalized, Maryland’s state’s attorneys should follow the national and state trends that recognize prosecuting marijuana cases does more harm than good,” said Jeff Gilleran, chief of the forensics division for the Maryland Office of the Public Defender.

Due to the increased cost of outsourcing marijuana testing, the Maryland State Police now requires that agencies that submit suspected marijuana samples for testing send a letter from the prosecuting state’s attorney’s office stating that a case will be prosecuted. MSP began outsourcing tests in November to NMS Labs in Pennsylvania at a cost of $185 per sample, spokesman Greg Shipley said Wednesday.

So far, 131 samples have been sent for quantitative THC testing and 25 will be sent next week, Shipley said.

A spokeswoman for NMS Labs could not provide information about how many samples the lab has received from Maryland agencies since the law change.

Del. David Moon, D-Montgomery, said the complications created by the law change were an unintended consequence of a failure to ask “smaller” questions and to think through the impact.

“Unfortunately, what we have is we make a big policy decision based on the first policy issue and we leave all the rest for the courts and the bureaucrats to sort out,” he said.

Moon, an advocate for legalization of recreational marijuana, sits on the state’s Marijuana Legalization Workgroup. Though legalization is not expected to pass the legislature in 2020, Moon was skeptical of spending money to upgrade testing facilities “for what could be a very limited window for remaining marijuana prosecutions.”

Meanwhile, the state police have applied for grant funding to upgrade their own testing facilities.

The letter from the Attorney General’s Office notes that “perhaps in some limited circumstances” prosecutors could use circumstantial evidence to show a substance is likely marijuana, not hemp.

But Baltimore County State’s Attorney Scott Shellenberger said he disagrees with the letter’s position that circumstantial evidence should be a rarity in proving marijuana possession.

“I think circumstantial evidence is still a strong point in any prosecution, including marijuana,” he said. “Obviously, we have to prove it and we’re certainly willing to meet that burden of proof.”

Shellenberger said in October that his office’s policy is to evaluate each case to decide what resources should be used to prosecute it, including whether to spend money to test suspected marijuana. The office has chosen to have outside labs test substances since the law change. Shellenberger has recommended the purchase of a $240,000 machine for the county’s own laboratory.

The letter from the Attorney General’s Office will not change his policy, Shellenberger said Tuesday.

“I respect everybody’s opinion and we certainly take it into account, but advice letters from AGs — in a courtroom (they) don’t really mean anything, and for us that’s what counts,” he said.

Karen Mooney, an assistant prosecutor in Montgomery County who handles drug cases, said in October that the county lab includes a note on its report that it cannot test for quantity of THC. Defendants are asked if they intend to claim the substance is hemp and, if so, it is sent for outside testing.

Mooney said Thursday that the Montgomery County State’s Attorney’s Office will review the attorney general’s advice letter and evaluate how the office handles cases.

Prince George’s County State’s Attorney Aisha N. Braveboy said in a statement that the office was “focusing its resources on prosecuting drug trafficking and distribution,” which “have a relationship to crimes of violence.”

“Our office has been in touch with the Office of the Attorney General, and this advice is consistent with our understanding and interpretation of the impacts of the new law,” Braveboy said.