Looking at a marijuana plant and hemp plant side by side, can you tell the difference between the two. Do they look different? Do they smell different? Do they have different textures? The answer to all these questions is no. Both plants are part of the cannabis family (Cannabis sativa L) and are virtually identical by all outward appearances. But in Georgia, these two substances are treated quite differently under the law. One substance is used in a variety of products such as rope and clothing fabric; the other is consumed to get high, and, if possessed in enough quantity, can send you to prison.
Up until 2019 both hemp and marijuana were illegal in the State. In that year, however, the General Assembly passed the Georgia Hemp Farming Act (“GHFA”), which legalized the farming, production and sale of hemp. The bill was created as a measure to promote the economic development of hemp as an agricultural and commercial product. But because the two plants are indistinguishable to the naked eye, the bill created problems for prosecuting the illegal possession of marijuana.
The Georgia Controlled Substances Act, which criminalizes possession of all the various substances the General Assembly have deemed harmful to the public, defines marijuana as “all parts of the plant of the genus Cannabis.” O.C.G.A. § 16-13-21(16). So traditionally, it was illegal to possess either hemp or marijuana because the definition of marijuana encompassed all Cannabis plants. Under the GHFA, however, the definition was modified to state that marijuana “shall not include hemp or hemp products as such terms are defined” in the Georgia Hemp Farming Act.
So how is hemp defined under the GHFA? All Cannabis plants contain some level of delta-9-THC. This is the substance that makes you feel high. The greater the concentration of delta-9-THC, the higher the high, so to speak. And it is based on the level of THC concentration that the General Assembly has chosen to make its distinction between hemp and marijuana. The GHFA defines hemp as any part of the Cannabis plant with a total delta-9-THC concentration that does not exceed .03 percent. Thus, a concentration of .03 percent THC or lower is hemp, and a concentration over .03 percent is marijuana.
So why does this definition create problems for criminal prosecution? Before the enactment of the GHFA, a Cannabis plant was identified by tiny hairs on the plant called trichomes that could be seen through a microscope. This sort of identification was easy enough and law enforcement could be trained to detect marijuana in this way. Thus, marijuana, as it was previously defined, i.e. all parts of the Cannabis plant, could be identified at the local law enforcement agency using a relatively inexpensive microscope. There were also secondary chemical color tests that could confirm the presence of THC.
Measuring THC concentration, on the other hand, is not so simple. The most accurate results are derived from a testing method called gas chromatography and mass spectrometry. I will not go into the details here of how this testing works but will note, only, that the equipment for it is expensive and requires highly technical training. There are no local agencies I am aware of that own this equipment and have personnel trained for its use. Instead, law enforcement relies on the GBI crime lab for testing. In 2019, however, after the GHFA became law, the GBI recognized that it would not have the capacity to test every single baggie of suspected marijuana the cops were able to seize. As a result, it issued a statement indicating it would not test suspected leafy marijuana samples unless the alleged total weight in the prosecution was at least one ounce or more. One ounce is the threshold weight for marijuana possession to become a felony. Anything less than an ounce is a misdemeanor, unless it is offered for sale. So essentially, the GBI told law enforcement it would only test for THC in marijuana in felony level cases. For misdemeanors, local agencies would be left to their own devices.
Assuming most local agencies are not going to be able to test for specific Delta-9-THC levels in suspected marijuana, the question becomes whether the State can prove beyond a reasonable doubt at trial that a substance is, in fact, marijuana. Or to put it another way, can the State prove beyond a reasonable doubt that the suspected marijuana contains a THC level above .03 percent. Back in 2003, the Georgia Court of Appeals, in Chambers v. State, 260 Ga. App. 48 (2003), held that the State failed to meet its burden of proof in a marijuana case where it failed to present any evidence of scientific testing of the substance in question. Specifically, the Court noted that
[g]iven the exceedingly specific and scientific definition of [marijuana], the instances in which the [s]tate could exclude reasonable doubt without performing conclusive, scientific tests on the suspected marijuana would be very rare.
This holding should carry more weight today, now that the requirement for proving a substance is marijuana is even more specific than before.
Of course, any fact can be proven by circumstantial evidence, and, after Chambers, the Court of Appeals, in several instances, held that the State had sufficiently proven a substance was marijuana without the use of scientific evidence. In Jones v. State, 268 Ga. App. 246 (2004), for example, the defendant, when approached by law enforcement officers tried to reach into the back of his truck, and, when asked what he was doing, said he was “putting out a joint.” In addition to this admission by the defendant, the officer in the case testified that, based on his training and experience, the substance felt and smelled like marijuana. The Court deemed these bits of circumstantial evidence sufficient to prove marijuana possession. But, keep in mind, this case was decdied before the GHFA.
Would such evidence work now? A person in possession of what he believed to be marijuana could be mistaken. He could have been sold fake goods. After all, how could an individual buyer know whether the substance he purchased had a delta-9-THC content of more than .03 percent. (Yes, if he smoked it and got really stoned, then maybe it is marijuana: but who is going to admit that fact to a cop.) Additionally, no officer could honestly testify, as the officer did in Jones v. State, that he could distinguish between marijuana and hemp by sight or smell.
This problem of proof has led some prosecutors to announce they will no longer prosecute misdemeanor marijuana cases. And so far, neither the Court of Appeals nor the Georgia Supreme Court has weighed in on whether a substance can be proven to be marijuana beyond a reasonable doubt without scientific evidence of the specific THC level. This is not to say it is okay to possess a misdemeanor amount of marijuana. It is still illegal in Georgia. But if you have been arrested or ticketed for marijuana, it is important to speak to an attorney before making any decisions on how to proceed. There are likely reasonable defenses to be made in such a case.