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In January 2020 Austin City Council approved a resolution (Item 59) to stop arresting or ticketing people for most low-level cannabis possession offenses. The city council’s resolution prohibits using city funds or personnel to conduct such testing in non-felony cannabis cases. Following the passage of hemp laws in the state, officials in several counties indicated they would no longer prosecute low-level cannabis cases due to their inability to differentiate industrial hemp from THC-rich cannabis products.
To avoid continued waste of city funds on costly testing services as well as the cost associated with prosecuting a cannabis possession case. This resolution is intended to ensure that legal funds are more properly allocated in public safety contexts. Prosecutors in Austin’s Travis County and elsewhere in Texas are refusing to litigate misdemeanor cannabis cases without a lab report proving the confiscated cannabis is cannabis, not hemp. This burden of proof costs more than prosecution is worth in low-level possession cases, especially when there is no risk to public safety.
The Texas Department of Public Safety (DPS) is almost ready to roll out its long-awaited lab test to tell if cannabis is newly legal hemp or illegal cannabis. The state lab test for THC levels is expected to be finalized by the end of March but it is expected to take another two months to implement. With the explosion of the CBD craze and blossoming market for hemp flower, making the distinction between legal hemp flower and illegal cannabis (THC over 0.30%) is proving much more difficult than anticipated.
While Texas does have the option to send samples off for lab testing to determine if cases are indeed prosecutable, the associated costs are obviously hard to justify for a low-level misdemeanor. The fact remains that physical senses alone can not distinguish the THC content of cannabis. The state labs won’t do testing in misdemeanor possession cases. The lab was able to get federal resources to make testing cannabis in felony cases faster but did not get extra funding for misdemeanor cases. That will likely entrench what has become a patchwork system of cannabis enforcement currently across the state. Possession of a small amount of cannabis could mean no criminal charges in one county and jail time in a neighboring one.
Slowly but surely the US is seeing changes in how law enforcement is dealing with small possession cannabis cases—in some, even doing away with criminal charges. Currently, the lab will only be set up to test plant material although Texas officials state they are working on methods to test concentrates and edibles for THC content. On a yearly basis in Texas alone- 80,000 low-level cannabis arrests are made. The DPS lab won’t have the capacity to test the misdemeanor cases, on top of the 50,000 felony cases it takes on.
Since the law change, prosecutors across the state of Texas began taking very different approaches to pursue cannabis charges. Some are prosecuting cannabis cases as before, depending solely on circumstantial evidence without lab results. Others stopped accepting new low-level cases unless police could hand over a lab report that showed what they had was illegal. Because of the difficulty to continue criminal proceedings in possession cases without a reasonable doubt, nine out of 10 of Texas’ most populous counties indicated in July 2019 that they would drop or not prosecute low-level cannabis cases.
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