Effect of the Farm Act on POM

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Saturday, August 24th, 2019
Effect of the Farm Act on POM

While many big city prosecutors are dismissing marijuana cases due to the recent passage of the Hemp Farming Act, out in the country these cases are still being prosecuted. This article is aimed at helping those of you who are still trying marijuana cases to juries.

Background

On June 10, 2019, Governor Gregg Abbot quietly signed House Bill No. 1325, also known as the Hemp Farming Act (Act), into law. The purpose of the Act is to “promote cultivating and processing hemp and develop new commercial markets for farmers and businesses through the sale of hemp products.” HB 1325 sec. 2(b)(2). The bill became effective upon signing.

Under the Act, “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. Sound familiar? It should. The Health and Safety Code defines marijuana in pertinent part as “the plant Cannabis sativa L.”

The Additional Proof Required

With passage of the Act, a new proof requirement has now effectively been added to all possession of marijuana cases. To prove up possession of marijuana, the state must prove possession (through affirmative links) and that the substance is marijuana. The legislature effectively made law that any substance that is purportedly a variant of marijuana but is less than 0.3% THC concentration is not a controlled substance. Thus, the state must now prove that alleged marijuana contains THC above 0.3% on a dry weight basis.

Before June 10, 2019, to prove that the defendant was guilty of marijuana, the state had to prove, beyond a reasonable doubt, three elements. These elements were
that

1. the defendant possessed marijuana;
2. the marijuana was of a useable quantity; and
3. the defendant knew he was possessing marijuana.

Today, after the passing of The Act, the state must also prove that the marijuana contained THC greater than 0.3 percent on a dry weight basis. Proper jury instructions should so instruct the jury.

Practical Application

One week after passage of the act, I found myself in trial, in a rural county, on a possession of marijuana case. I represented the driver of a small SUV that was stopped at three a.m. along I-10. There were four additional passengers in the vehicle. The stop was based on a traffic violation (speeding), and the search was based on probable cause established by the odor of marijuana coming from the interior of the car (plain smell).

During the search, marijuana residue was found on the floorboards (front and back) and the center console. There was a large sum of cash and a digital scale located in a purse on the front passenger side floorboard and cigarillos found on the right rear passenger floorboard. The marijuana was found in the center console along with the ID of the right front passenger. The theory of the case was that my client knew she was in a place where marijuana was present, but it was not hers.

I requested the following instructions in the charge.

      “If the evidence shows only that the defendant was at a place where the marijuana was being possessed, that evidence alone is not enough to convict her.”

      “If the evidence shows only that the defendant knew that someone else was in the possession of the marijuana, that evidence alone is not enough to convict her.”

My client’s uncontroverted testimony supported the inclusion.

However, I did not request the fourth element discussed above—i.e., I did not ask that the jury be instructed that “the state must prove beyond a reasonable doubt that the marijuana contained THC greater than 0.3 percent on a dry weight basis.” This is the element that has prompted many prosecutors to no longer accept marijuana charges, and to go so far as to instruct law enforcement agencies not to file marijuana cases unless THC levels can be proven to be above the 0.3 percent threshold.

The Lesson

I was so focused on the issue of “possession” that I overlooked this obvious additional proof required by the passage of the Act.

Happy Ending

Although I failed to ask for the THC language in the charge, the jury got it. They returned a ten-minute not guilty verdict on this case.

Conclusion

Because marijuana cannot be distinguished from hemp without testing, the state can no longer prove marijuana cases with police testimony alone. Expert testimony by an analyst is now required. Therefore, the state will have to implement testing in all POM prosecutions going forward.