As you may have read, Georgia’s Hemp Farming Act, which Governor Kemp signed into law on May 10, 2019, is creating problems for state prosecutors when it comes to pursuing charges for marijuana possession. The Atlanta Journal-Constitution (AJC) recently reported that Gwinnett County – which is situated between Atlanta and Augusta – has been dropping misdemeanor marijuana possession charges dating back to the Hemp Farming Act’s date of enactment. According to the AJC, prosecutors there say that the law, “raises serious questions about how district attorney offices across Georgia can move forward with cases,” for marijuana possession.
So, what’s the issue? According to prosecutors in Gwinnett County, while the Hemp Farming Act was intended to authorize licensed farmers to grow hemp for the production of medical low THC oil (which Georgia legalized in 2015), the law’s language is broad enough that it allows anyone to legally possess hemp in Georgia. While this is not necessarily an issue on its own, the problem lies in the fact that police and prosecutors do not currently have the technology needed to distinguish hemp from marijuana. Since both plants look and smell the same, the AJC reports Gwinnett County prosecutors are concerned that:
“[The Hemp Farming Act] raises questions about police officers’ ability to justify marijuana-related arrests. Predicating arrests and prosecutions on someone possessing a ‘leafy green substance’ or smelling like marijuana may no longer be enough if low-THC hemp can be legally possessed.”
According to WSB-TV 2 Atlanta, a memo obtained from the Gwinnett County prosecutor’s office indicates the office will not be prosecuting marijuana cases until the Hemp Farming Act is amended. It also quoted Gwinnett County District Attorney Danny Porter as stating, “Every single marijuana case is now up in the air pending further action.”According to the news agency, “until a test becomes available, Gwinnett’s prosecutors believe the rest of the state will soon follow their lead.”
Prosecutors are Dropping Misdemeanor Marijuana Possession Charges – For Now
What does all of this mean if you currently have a marijuana charge pending in Georgia state court? Unfortunately, the answer is not as straightforward as it might seem from the media coverage.
First, right now the decision not to prosecute marijuana cases appears to be limited to Gwinnett County. As of right now, there do not appear to be any other counties that have made the decision to stop prosecuting marijuana cases wholesale. Furthermore, even in Gwinnett County, the decision applies to misdemeanor marijuana possession cases only (involving possession of one ounce or less for personal use). Since felony drug crimes have a longer statute of limitations, prosecutors are still keeping these cases on the books.
Second, after WSB-TV 2 Atlanta released its initial report, prosecutors in Gwinnett County responded with a statement that they believe they have now found two field testing devices that police can begin using to distinguish between hemp and marijuana. These tests would allow police officers to determine if a “leafy green substance” has a high level of THC consistent with marijuana. According to WSB-TV 2 Atlanta, police may have these devices in their hands “in a matter of months.”
Third, while the Hemp Farming Act arguably legalizes possession of hemp in Georgia (not all lawmakers and prosecutors agree with Gwinnett County’s interpretation), possessing marijuana is still a crime under all circumstances. You can legally possession low THC oil for medical purposes if you have a Low THC Oil Registry Card from the Georgia Department of Public Health, but possessing or using any other form of marijuana – or possessing low THC oil without a registry card – is minimally a misdemeanor offense carrying the potential for up to a $1,000 fine and year in jail. If you are arrested with more than an ounce of marijuana (up to 10 pounds), you can be charged with a felony carrying up to a $5,000 fine and 10 years behind bars.
Finally, even if other counties do decide to follow Gwinnett County’s lead, for the time being, the decision not to prosecute appears to apply only to marijuana in plant form. So, there are still many ways to be arrested and prosecuted for a marijuana-related crime. If you are caught with edibles, oils, tinctures, topical creams, or marijuana paraphernalia, prosecutors may still have the evidence they need to pursue your case. The same is true if you are arrested for driving under the influence of marijuana (or “driving while high”); and, if you have a growing operation or are caught selling, you will still be in violation of the law regardless of whether your product is marijuana or hemp (unless you have a license under the Hemp Farming Act).
Defending Against a Marijuana Charge in Georgia
So, marijuana is still illegal in Georgia, and the Hemp Farming Act is not the “get out of jail free” card many people were hoping for. What should you do if you have been charged with possession, sale, delivery, cultivation, or any other marijuana-related crime?
- Speak with an Attorney – As with any other crime, if you have been charged with possession, sale, delivery, or cultivation of marijuana, you should speak with an attorney right away. You should let your attorney deal with the police and prosecutors on your behalf; and, if you have an opportunity to avoid prosecution under the Hemp Farming Act, you will want to have your attorney raise the issue right away before circumstances change.
- Evaluate Your Potential Defenses – There are numerous potential defenses to criminal charges in Georgia. Even if you were arrested in possession of marijuana, this does not necessarily mean that you deserve to be convicted. For your consideration, we have published a list of 20 Potential Legal Defenses to Criminal Charges in Georgia.
- Avoid Assumptions and Other Costly Mistakes – While you cannot assume that you will have your charges dropped based on the Hemp Farming Act, you also must not assume that you will be found guilty at trial. There are other potentially costly mistakes you need to avoid as well; and, once again, the best way to protect yourself is to speak with an attorney as soon as possible.
Request a Confidential Initial Consultation in Augusta, GA
If you are facing prosecution for a marijuana crime in Georgia, you need experienced legal representation. To speak with a criminal defense lawyer at Davis, Chapman, & Wilder, LLC in confidence, call our Augusta, GA law offices at 706-200-1578 or contact us online today.
