Late on a Friday night in April 2018, Donte Chazz Williams drove from his home in southeast Houston to his girlfriend’s just outside the city. A block from her house, he coasted through a stop sign, drawing the attention of a Fort Bend County sheriff’s deputy.
The deputy pulled him over and said he smelled pot. Williams said he had a bit of it in the car, and, sure enough, the deputy found a small bag in the center console, according to police reports, Williams and his lawyer. The deputy arrested Williams and booked him into the local jail for possession of 2 grams of marijuana.
Williams, who was 22, posted bail the next day, but the misdemeanor drug case dragged on for more than a year as he and his lawyer negotiated his enrollment in a drug-education program. He didn’t complete the class, so when he was called before a judge two weeks ago, he worried he’d be sent back to jail.
Instead, prosecutors dropped the case, saying they could no longer prove that the pot was indeed pot.
“That’s crazy,” Williams recalled thinking. “It actually blew my mind.”
Williams thanked his lawyer. But he could also credit state and federal lawmakers, who, in a rush to expand America’s production of industrial hemp, unwittingly made it harder for law enforcement to prosecute people for possessing marijuana.
With the passage of new hemp-legalization laws over the past eight months, crime labs across the country have suddenly found themselves unable to prove that a leafy green plant taken from someone’s car is marijuana, rather than hemp. Marijuana looks and smells like hemp but has more THC, the chemical that makes people high.
Without the technology to determine a plant’s THC level, labs can’t provide scientific evidence for use in court. Without that help, prosecutors have to send evidence to expensive private labs that can do the tests or postpone cases until local labs develop their own tests, a process that could take months.
Rather than deal with prohibitive costs or lengthy delays, prosecutors in several states, including Texas, Florida and Ohio, are dropping low-level pot cases altogether or declining to bring new ones. Police in those states are now unsure whether their age-old pretext for searching cars ─ the smell of pot ─ is still valid. Some have been told not to make any arrests for marijuana possession, although they can issue tickets and confiscate the suspected drugs for testing later.
There is no way to determine how many cases have been imperiled by the new laws, but they number in the hundreds, perhaps thousands, law enforcement officials say.
“This is a nationwide issue,” said Duffie Stone, president of the National District Attorneys Association and a prosecutor in South Carolina, where pending marijuana cases are piling up as crime labs scramble to obtain equipment to conduct the new testing. ”This problem will exist in just about every state you talk to.”
Let our news meet your inbox. The news and stories that matters, delivered weekday mornings.
With the spread of efforts to decriminalize marijuana, these unintended consequences have made life easier for America’s pot smokers, particularly in states that haven’t passed laws making it legal to possess small amounts of weed. Some observers have described the hemp laws as de facto decriminalization, although lawmakers insist that’s not the case.
The confusion over hemp stems from the 2018 Farm Bill, passed by Congress in December, which made hemp a legal crop to be used in the production of textiles, fabrics, paper, food and health care goods made with cannabidiol, a nonintoxicating extract known as CBD. In order to distinguish hemp from marijuana, which remains illegal under federal law, Congress defined hemp as having less than 0.3 percent of THC. The Farm Bill left it to states to pass their own laws on cultivating hemp; 47 states have done so, according to the National Conference of State Legislatures. Most of those states adopted the 0.3 percent standard.
Crime labs were not prepared for the impact.
Before hemp was legalized, all the labs usually had to do on pot cases was conduct a relatively cheap and quick series of tests that showed whether something came from a cannabis plant. They had ways of testing for the presence of THC, but didn’t typically need them.
Now, many will have to purchase new testing equipment, hire more staff, train staff on new testing methods and get the methods approved for use in court. Some say they are weeks away; others say they won’t be able to conduct the tests on a routine basis until next year. Some labs also expect their caseloads to increase significantly. And that’s just for plant-based marijuana cases, not edibles or vaping oils. Lab officials in Texas have estimated that the total cost there could run beyond $10 million. Private labs are charging $200 to $600 per test.
In Tennessee, the state Bureau of Investigation has asked prosecutors to be selective in the pot cases they choose to pursue, and to not submit evidence from misdemeanor pot cases until labs develop new testing procedures, said David Rausch, the bureau’s director. In Ohio, Attorney General Dave Yost announced a $50,000 fund to cover the costs for police sending evidence to private labs. Several counties in Georgia said they havestoppedpursuing misdemeanor marijuana charges. In Florida, prosecutors in at least four judicial circuits have told police they won’t file marijuana cases without a lab test.
“If you want to have a hemp industry, there’s no way to get around this issue,” said Phil Archer, the state attorney in Florida’s 18th Judicial Circuit. He said he has not filed any marijuana cases since Florida’s hemp law went into effect July 1. “I would say a majority of circuits are handling it in same way.”
Mitch Stone, president of the Florida Association of Criminal Defense Lawyers, said he has used the new testing requirement to successfully challenge searches and arrests, and has gotten little pushback. “State attorneys don’t want to be dragged into court by defense lawyers to defend a case where they can’t prove that their decisions were lawful,” Stone said.
Peter Stout, president of the Houston Forensic Science Center in Texas, said his agency has hundreds of felony-level marijuana cases waiting for testing that may not be available for several months. Until then, the local prosecutor, Harris County District Attorney Kim Ogg, said she would not accept criminal charges for possession of less than 4 ounces of marijuana ─ but would consider pursuing more serious cases.
“Everyone is struggling here,” Stout said.
Some law enforcement officials have pushed forward with marijuana cases, through paraphernalia charges or other workarounds. That’s the path endorsed by Texas Gov. Greg Abbott, a Republican who accused prosecutors of misinterpreting the new hemp law. In a letter to the state’s district attorneys last month, Abbott said they didn’t need testing in every marijuana case, and could instead charge someone with failure to possess a certificate saying they were licensed to transport hemp.
The prosecutors, however, were not satisfied.
In Fort Bend County, District Attorney Brian Middleton maintained that prosecutors indeed needed testing for all cases, even for violations of the hemp-certificate provision.
Middleton also said he had decided to dismiss some pending marijuana cases to avoid lengthy delays. “Under the circumstances, we concluded that it was unfair and unethical to further prolong these particular cases,” Middleton said in a statement.
He could have been talking about Donte Chazz Williams.
By the time the Texas hemp law went into effect on June 10, Williams’ case was more than a year old, delayed by routine matters: postponed court dates, a slow evidence-collection process, and Williams’ attempts to get into a program that allowed defendants to have their charges dropped in exchange for taking a drug education class. During that time, Williams said, he lost his job as a forklift driver and was unable to pay the class fees.
He considered blowing off an Aug. 6 court date because he feared he’d be sent back to jail. He assumed he’d eventually get sentenced to several months of probation.
Williams knew nothing of the hemp law confusion until he showed up at the courthouse and his lawyer, Vik Vij, handed him a copy of prosecutors’ motion to dismiss the charges.
“Required lab testing unavailable at this time,” a prosecutor scrawled on the margin. (Although the new hemp law didn’t indicate whether it was retroactive, prosecutors in Fort Bend and in other parts of Texas are treating it as if it is.)
Prosecutors could refile the case once the testing becomes available, a Middleton spokesman said.
But Williams said he was happy to have another chance.
“I feel lucky, for real,” he said. “Now I don’t have to do anything but go find myself a job.”
Jon Schuppe writes about crime, justice and related matters for NBC News.