Sept. 4, 2019 — AAS – Local prosecutors have sidelined low-level pot cases now that a state law legalizing hemp is in effect, but those who are cited or arrested for small amounts of marijuana could still face prosecution down the line.
Texas now defines hemp as containing less than 0.3% of THC, the intoxicating agent in marijuana. Anything more than that is classified as marijuana, which is still illegal under state and federal law. Many county prosecutors across the state joined Travis County in rejecting pot possession cases because authorities don’t have the ability to test for THC concentration.
Rejecting a case, though, is not the same thing as a dismissal. When a case is rejected, police have the option of leaving it open and refiling with the courts at a later date.
Austin Police Assistant Chief Troy Gay told members of a city panel Tuesday that misdemeanor cases of marijuana possession, which are being rejected by the Travis County attorney’s office, come with a two-year statute of limitations. That leaves them open for prosecution when law enforcement agencies settle on policies, procedures and equipment for testing the concentration of THC in a sample, Gay told the Austin Judicial Committee.
County Attorney David Escamilla said his office has rejected misdemeanor cases because of a lack of lab reports showing excessive THC concentrations.
But Gay said Austin police already have a machine capable of testing for THC concentration. However, it is not being used for that purpose yet. The machine, a liquid chromatography mass spectrometer, can determine the purity of such substances as methamphetamine, opioids and K2. So far, that’s what Austin police have used the spectrometer for, but they also could start using it for THC once they implement training.
Dana Kadavy, executive director of the Austin police Forensic Science Bureau, said implementing that THC testing has some roadblocks. Building the necessary testing policies, validating results, training staff members and verifying their confidence in the methodology is a yearlong process.
Because the testing problem will likely be resolved in 12 months, well within the window for prosecution, that could still mean court dates for those with marijuana arrests or tickets that otherwise would have been rejected before lab reports became available.
With Austin police expecting to conduct more THC testing in the future, officials are looking at buying another machine to build some redundancy in their testing capability. If the machine Austin police currently have goes down, investigators won’t be able to test for opioids, methamphetamine and the synthetic narcotic K2.
