New Hemp Law Is Making It Harder To Prosecute Marijuana Possession

Ohio's Attorney General, Dave Yost, is offering local law enforcement agencies help in determining whether confiscated pot is illegal marijuana, or hemp, which is now legal in Ohio.  Local authorities have said they can't tell without THC tests, which they don't have the technology to conduct.  And they say that's made it harder for them to prosecute marijuana possession cases.  

THC - tetrahydrocannabinol -  is the chemical that produces marijuana's high.  The new law defines hemp as having a THC level of below 0.3 percent.  Higher than that, it's marijuana, and the state's laws against its possession can be enforced.  

But some cities, such as Columbus, have stopped prosecuting people for having small amounts of marijuana because of their inability to determine what's pot and what's hemp.  They say drug-sniffing K9s can't tell the difference.  And they say sending the confiscated pot to a private lab for THC tests is too expensive to do for misdemeanor possession offenses. 

Ohio House Speaker Larry Householder isn’t buying those arguments. 

“I think that was a political situation by the city of Columbus because they don’t want to abide by the marijuana laws we have in the state of Ohio. I don’t think there’s any question about that," Householder says. 

Democratic Columbus City Attorney Zach Klein said the city’s decision to temporarily stop prosecuting people for small amounts of personal marijuana, a misdemeanor offense, is not political. He says it’s practical and applies to all parts of Ohio. 

“Clearly in the short term, without having the appropriate testing, no one, whether it is the city of Columbus or all other 88 counties, can prosecute a marijuana case as a result of this bill," Klein said.

Republican Ohio Attorney General Dave Yost sees it this way. 

“The fact of the matter is a prosecutor can’t take a case to court without having a lab test that shows that it has a prohibitive level of THC," Yost said.

Yost was also quick to point out the hemp law hasn’t rendered personal marijuana use legal. 

“Since the 1980s, up to 100 grams of marijuana is legal basically in Ohio. It’s up to $150 fine. You cannot get arrested for it under Ohio law. Now, you can get a $150 fine and there are collateral sanctions, so I’m not encouraging people do it but the notion that we have people in jail because they had one marijuana cigarette in their pocket, they had a joint in their pocket when they got stopped for a traffic citation, just isn’t true," Yost said.

He said cities can use private testing labs to test marijuana if they want. He's set aside $50,000 to help offset the costs.  He said new machines to test THC have been installed at Ohio Bureau of Criminal Investigation labs in Richfield and London. Another is planned at Bowling Green. He said they'll be available for local authorities' use by the first of the year. 

Yost said cities that want to prosecute for marijuana-related crimes can use that equipment but they need to pay for it if the crime isn’t serious enough to warrant jail time. And cities will have the option of purchasing their own equipment.

But Columbus City Attorney Klein said the cost of prosecution is still an issue. 

“You know, when the city of Columbus City Council passes a law that essentially makes it a $10 fine for possessing marijuana and a new piece of equipment costs $250,000, we have to have the practical conversation of a cost-benefit analysis of, should we spend $250,000 for a $10 fine?" he asked.

Klein said it’s important to note drug traffickers or those driving under the influence of drugs will be prosecuted now and in the future. And Attorney General Yost said state testing labs will give higher priority to testing marijuana for those more serious crimes. And he says $50,000 is being made available in grant money to help police agencies with the cost of testing and prosecuting marijuana crimes. 

But Householder said the notion that this conversation is happening now as the new hemp law is implemented is aggravating lawmakers like him who supported it. 

“It’s extremely frustrating. I just can’t believe it happened. It is just the most bizarre thing I’ve seen in my time in the legislature where you can go through a process of 14 weeks that a bill is out there and everybody knew this bill was moving and we were looking for controversial issues to help us make decisions and we found none," Householder says.

Klein said Columbus didn’t testify against the bill because farmers actually need the opportunity to grow and market hemp and were at a competitive disadvantage without it. Farmers who want to grow hemp will be required to obtain a license from the state. Those licenses are not available right now but the goal is to have farmers licensed and able to plant the crop by the spring of 2020.

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