How Georgia’s New Hemp Law Is Affecting Criminal Marijuana Cases

On May 10, 2019 Governor Brian Kemp signed a bill making it legal for farmers to grow hemp in the state of Georgia. After the new law came into effect, a number of criminal marijuana cases have been paused, with prosecutors being forced to look for new ways to distinguish between marijuana and hemp to determine whether they can continue to prosecute.

Some of the top prosecutors in Georgia have spoken out about their now compromised ability to handle marijuana cases, and have even begun dropping these cases altogether feeling that they are now unable to move forward with them. Several County Police Departments are no longer making arrests for misdemeanor marijuana violations, writing tickets instead. 

The law does, however, still need clarity around the different classifications of hemp and marijuana – while they are almost identical substances, hemp has much lower levels of the psychoactive chemical THC. Georgia attorneys have argued that the law is not explicit when it comes to defining hemp possession, and, therefore, makes it legal by default, causing difficulties for Georgia police officers to make marijuana-related arrests.

Because the current tests used by local law enforcement only indicate whether THC is present in the substance rather than the concentration of it, it is a significant challenge to be able to prove whether the substance is hemp or marijuana. Without being able to easily differentiate between the two, successful prosecutions will be challenging. 

State Rep. Chuck Efstration, R-Dacula, however, suggested the issue is less complicated than attorneys are making it out to be, saying: “It’s just that prosecutors will have to prove an additional element (of evidence) if an argument is made that industrial hemp somehow prevents enforcement of the criminal marijuana law.” 

Pete Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia, agreed that the Hemp Farming Bill will result in making prosecuting marijuana cases “difficult but not impossible.” 

The current advice from the council is that prosecutors and law enforcement officers should consider marijuana cases individually, with Skandalakis going on to say, “Our advice is to do what they typically do on a day-to-day basis, which is deal with each case on a case-by-case analysis, see what evidence you have and go forward with those cases you can make out.”

However, this advice has not stopped some prosecutors from taking more drastic action. In Gwinnett, solicitor general Whiteside issued a memo stating his office would not be taking on misdemeanor marijuana cases and has already dismissed over 100 cases. DeKalb Police have also released a statement saying officers will no longer issue citations or arrest anyone on misdemeanor marijuana charges:

“Although possession of marijuana remains illegal, the DeKalb County Police Department will temporarily stop issuing citations or arresting anyone for possession of only misdemeanor amounts of marijuana.”

However, the police department and the solicitor general’s office also stated that they would continue to work on cases involving additional charges beyond marijuana.

If you need any further information on advice on how Georgia’s new hemp law might affect you or your case, get in touch with the experienced team at Pak and McRae Law today for a free, confidential consultation.

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Pak & McRae Law

At Pak and McRae Law, LLC we provide straightforward, sincere criminal defense for local, state, and federal matters. Our team includes a former Assistant District Attorney, so we understand how prosecutors approach cases and will use those insights to benefit your case.

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