May 27, 2019 Field & lab testing to rule out industrial hemp – Virginia criminal lawyer
Field testing and lab testing for marijuana is more complex now that industrial hemp is legalized in Virginia
Field testing and lab testing for marijuana ordinarily is essential before a prosecutor can obtain a marijuana possession or dealing conviction, unless the defense stipulates that the substance in fact is marijuana. As a Virginia criminal lawyer, I know that until the recent federal Farm Bill permitted the lawful production and sale of industrial hemp, Virginia prosecutors typically relied at trial to prove marijuana possession through field testing by police (unless the defense obtained an order for the Virginia Department of Forensic Science (DFS) to test the alleged marijuana), and through DFS lab testing for anything more serious that mere marijuana possession.
Virginia drug lawyer on the DFS’s updated approach for field and lab testing alleged marijuana now that industrial hemp has been legalized
On May 23, 2019, the Virginia DFS Director issued a public memorandum (“Memorandum”) on the changes that will take place for testing alleged marijuana now that industrial hemp has been legalized, and that field testing does not distinguish THC concentrations. Highlights of this memorandum and Virginia’s updated industrial hemp law include:
-“Marijuana shall not include (i) industrial hemp, as defined in [Virginia Code] § 3.2-4112, that is possessed by a person registered pursuant to subsection A of § 3.2-4115 or his agent or (ii) a hemp product, as defined in § 3.2-4112, containing a tetrahydrocannabinol [THC] concentration of no greater than 0.3 percent that is derived from industrial hemp, as defined in § 3.2-4112, that is grown, dealt, or processed in compliance with state or federal law.” Va. Code § 18.2-247(D). (Note: This statutory provision is updated accordingly on Westlaw, but not on Virginia’s official online Code). I interpret this to meant that it is not a crime in Virginia to possess an industrial hemp product with a THC concentration of no greater than 0.3 percent.
Virginia criminal attorney on the meaning of industrial help and on THC thresholds with industrial hemp
-“‘Industrial hemp’ means all parts and varieties of the plant Cannabis sativa, whether growing or not, that contain a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law.” Va. Code § 3.2-4112.
-THC is a Schedule I drug in Virginia, unless found in non-hash oil marijuana, or, generally, as present in an industrial hemp product containing a THC concentration of no greater than 0.3 percent. Va. Code §§ 54.1-3401 and 54.1-3446 (the latter Code section is up to date in Westlaw but not in the official online Virginia Code).
-Federal law defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S. Code § 1639o.
Virginia marijuana lawyer on the method for determining the 0.3 percent THC threshold for industrial hemp
-The DFS Memorandum indicates that the 0.3 percent THC threshold for industrial hemp will be based on a dry weight basis, which is also the measurement basis in 7 U.S. Code § 1639o.
-The DFS Memorandum addresses an affirmative defense under Va. Code § 3.2-4113 against a prosecution of industrial hemp growers and processors. That sounds to be an overly narrow statement where the definition of marijuana (whether the material is possessed by a consumer, grower or processor) already omits industrial hemp from being prosecuted as marijuana. Va. Code § 18.2-247(D).
-The DFS Memorandum confirms that “[m]arijuana and industrial hemp are two different strains of the Cannabis sativa plant.”
-“The current marijuana field tests … approved by the DFS are only capable of presumptively identifying Cannabis sativa plant material; thus the current marijuana field tests cannot distinguish marijuana from industrial hemp.” DFS Memorandum.
Virginia criminal attorney on industrial hemp as an affirmative defense
-Where a marijuana defendant raises an industrial hemp defense or if any packaged material is labeled as “hemp product”, the DFS expects within a few months to use the federal Drug Enforcement Administration’s (DEA)’s method for determining whether plant material has a THC concentration exceeding one percent. The DFS also is looking into doing the same with edibles.
-THC concentration cannot be determined in residue.
-For post-March 21, 2019, marijuana prosecutions, except where THC concentration has been determined, DFS certificates of analysis will state: “Concentration of cannabinoid(s) not determined.”
Legalize marijuana, says Virginia criminal lawyer
Of course, all the foregoing minutiae about testing for THC concentration over one percent and stating “concentration of cannabinoid(s) not determined” would all be unnecessary by legalizing marijuana, hash oil, and all other cannabis products.
Virginia criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, drug and marijuana/cannabis prosecutions. To discuss your case with Jon Katz, please schedule a confidential consultation through his staff at 703-383-1100.