LINCOLN — Legalization of industrial hemp is causing headaches for prosecutors across the state, prompting some counties to suspend prosecution of possession of small amounts of its look-alike — and high-inducing — cousin, marijuana.
Under the state’s new hemp law passed in May, cannabis with a THC level of less than .3% is deemed legal.
That’s forced some prosecutors to believe that now they must prove, through testing and court testimony, that marijuana seized by law enforcement is above that THC limit, and is illegal marijuana and not legal hemp.
Proving that a plant is illegal marijuana requires testing not available currently in Nebraska, and some prosecutors say it would be cost prohibitive to bring out-of-state lab technicians in to testify in court that the substance seized is illegal because it tested above the .3% threshold.
Lancaster County Attorney Pat Condon estimated that it would cost between $1,500 and $2,000 to bring someone in from Pennsylvania, where the closest testing lab is located, an expense that pales in comparison with the typical fine for possession of pot, about $300.
“We’re trying to figure out how to go forward with this,” Condon said. “It is causing problems.”
Sarpy County Attorney Lee Polikov expressed similar concerns. “Before you get any kind of conviction, you need a good lab report,” Polikov said. “Our problem right now is we don’t have access to a state laboratory or sheriff’s lab that will test it.”
Not all prosecutors agree with that analysis, which has prompted Lancaster County and reportedly several other Nebraska counties to suspend, for the time being, prosecutions for small amounts of marijuana.
Douglas County Attorney Don Kleine said his office continues to prosecute marijuana cases by using a previous state law that allowed only University of Nebraska-Lincoln researchers to possess hemp. If a person cannot prove they’re with UNL and authorized to carry or plant hemp, then the cannabis they’re carrying is considered illegal marijuana, he said, and charges will be filed.
But even Kleine acknowledged that the new hemp law has left prosecutors in “limbo” until clearer state guidelines are adopted and that the approach taken in Douglas County may not stand up in court.
“We’ll see what the judges do with it,” Kleine said. “If they ask for something different, we’ll deal with that.”
Confusion began to creep into marijuana prosecutions shortly after a new federal farm bill was passed in December, allowing farmers to plant and harvest low-THC hemp, which can be used in a variety of products, from clothing to cosmetics and medications. The bill allowed states to adopt rules and regulations for hemp cultivation.
Nebraska lawmakers did that, passing Legislative Bill 657, which became law on May 30 with the signature of Gov. Pete Ricketts. So far, the state has moved slowly, allowing only 10 Nebraska farmers, selected through a lottery, to plant and cultivate “industrial hemp.”
Before LB 657, marijuana prosecutions were relatively easy — any pot found, regardless of its THC content, was considered illegal, and no tests were required to prove it was illicit weed.
But at least some of the state’s prosecutors say the new law has changed that, and with none of the state’s three crime labs currently set up to test THC levels in cannabis, they’re left in a quandary.
State Sen. Justin Wayne, the chief sponsor of the hemp bill, said he is mystified by the prosecutors’ confusion.
He said that his legislation was amended at the last minute, at the request of county prosecutors, to provide a different way to prosecute marijuana possession cases.
The amendment requires anyone who was transporting or in possession of hemp to prove it, by presenting a state bill of lading, indicating the grower of the hemp and its destination, and either providing proof that it has been tested and is below the .3% THC threshold or presenting documents showing it was produced legally under federal law.
Wayne, who is a defense attorney, said that anyone who failed to present such proof could be charged with a misdemeanor, which is punishable by a fine of up to $1,000, which is considerably higher than that for “a simple weed charge.”
“We gave prosecutors a different option to prosecute,” the senator said. “They can still prosecute. It’s just a different law.”
Polikov said he hasn’t considered the option suggested by Wayne for possession of a small amount of cannabis, figuring it would be more applicable to large shipments of hemp. “What do I do with the guy who has a taillight out and there’s a suspicion he has a smoke-able hemp cigarette?” he asked.
Condon, the Lancaster County prosecutor, said he suspects that any trial over the lack of a bill of lading would eventually get back to the issue of whether someone had legal hemp or illegal marijuana.
Confusion and concern about prosecuting marijuana cases since the legalization of hemp is not unique to Nebraska.
In Texas, more than 200 misdemeanor marijuana cases were dismissed in June in Fort Worth due to the same issue causing consternation in Nebraska — the lack of tests to prove that the pot was really pot.
Some truckers hauling hemp from state to state have been stopped and arrested because hemp looks and smells just like its illegal cousin, even to drug-detecting dogs. Polikov said that happened once in Sarpy County recently, but the drivers were ultimately released after showing that they were hauling legal hemp seed.
In Nebraska, the issue has been discussed with Attorney General Doug Peterson, who did not respond to requests for comment. The Nebraska State Patrol has sent out a survey to the state’s 93 county attorneys to discern how they are reacting to the new hemp law.
The three labs in the state that do forensic drug testing — the State Patrol, Douglas County and the University of Nebraska Medical Center in Omaha — are all in the process of validating testing procedures so that they can perform the necessary THC tests that will stand up in court.
Justin Aumann, the forensics services director for Douglas County, said that the validation process may take six to nine months, which leaves the state in limbo for now.
“It’s kind of a nationwide issue for labs,” Aumann said. “All of us are trying to develop the necessary testing.”
Kleine said his office began working with UNMC to validate their testing procedures shortly after Congress passed the farm bill, so that lab may be ahead of the others.
Wayne said that efforts were made in the Legislature to appropriate $250,000 to obtain new THC testing equipment for the State Patrol lab to handle the anticipated crush of new test requests, but that the patrol turned the offer down. Cody Thomas, a patrol spokesman, said the agency is using existing equipment in its effort to get its testing validated internally, and then approved by a national crime lab association.
Polikov, the prosecutor in Sarpy County, said that county attorneys are trying to get some “commonality” established among counties on how to handle marijuana cases until adequate testing is available, so that cases in Scottsbluff are handled the same way as cases in other counties.
He emphasized that the problem is primarily about small amounts of marijuana or pot residue, not about big busts or seizures of big shipments coming across Interstate 80. If those happen, prosecutors will find a way to get the tests done, Polikov said. He added that it’s not uncommon for people caught with marijuana to self-incriminate, thus no testing might be needed.
Kleine said he expected that problems will work themselves out as Nebraska’s crime labs get authorized to do THC testing. It will also help, he said, when the state completes a required state plan for regulating hemp, which will include procedures for testing the THC content and rules for transporting it. That plan is due by the end of the year.
“The bottom line is marijuana is still illegal here,” Kleine said.