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Is it hemp or marijuana? Ohio AG offers help to differentiate

Published: Wednesday, August 14, 2019 @ 5:16 PM


            Trooper Mike Wilson of the Ohio State Highway Patrol leads his drug-sniffing dog partner Pluto, a Dutch shepherd, past a truck stopped on I-70 in Madison County in 2016. Associated Press 2016
Trooper Mike Wilson of the Ohio State Highway Patrol leads his drug-sniffing dog partner Pluto, a Dutch shepherd, past a truck stopped on I-70 in Madison County in 2016. Associated Press 2016

Ohio’s legalization of hemp has complicated the way law enforcement approaches cases involving the illegal posession of marijuana.

That’s why Ohio Attorney General Dave Yost announced Tuesday the state was creating a grant program to help local law enforcement pay for testing to differentiate between hemp and marijuana.

Hemp is a cousin of marijuana but has a lower amount of THC, marijuana’s psychoactive stimulant and most crime labs can only tell whether THC is present, not how much THC is present.

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“Just because the law changed, it doesn’t mean the bad guys get a ‘get of out of jail free’ card,” Yost said. “We are equipping law enforcement with the resources to do their jobs.”

While the state is still preparing its own testing equipment, the grant program will provide $50,000 in funding for law enforcement agencies to have large quantities of marijuana tested in private accredited laboratories that have the capabilities to tell how much THC is in a substance.

In July, Ohio Gov. Mike DeWine signed a Senate Bill 57 into law, which allows Ohio farmers to grow hemp and legalized the manufacture and sale of CBD products derived from the plant.

The 2018’s federal Farm Bill legalized the regulated cultivation of hemp, and many states since have worked to legalize hemp and cash in on the newly reopened hemp market. Ohio Senate Bill 57 made the state’s hemp growing program compliant with the 2018 Federal Farm Bill.

Related: Ohio Senate votes to legalize growing hemp

This means that law enforcement need to be able to test for the quantity of THC, not just the presence of THC.

The legislature provided funding through House Bill 166 to buy equipment to tell THC levels and the attorney general’s Bureau of Criminal Investigation laboratories should be ready to receive evidence early next year, according to Yost’s office.

In between then and now, Yost said the challenge is that prosecutors can’t take a case to court without lab tests showing a substance has an illegal level of THC.

Nobody is going to be interested in doing that on a small marijuana case, Yost said, but he also pointed out that since the 1980s, possession of up to 100 grams of marijuana is already “legal basically in Ohio,” since a person can get fined but not arrested under Ohio law.

“The real problem is the traffickers, the people that are bringing marijuana illegally and in large quantities into our communities,” Yost said.

Yost said as a stop gap until the state crime labs are ready with the new testing equipment, the state is marking $50,000 for any law enforcement agency with a case with felony weight marijuana that qualifies for a prison term. Law enforcement can call Yost’s office and the state will reimburse for testing at a private lab.

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“Law enforcement needs to go on. Our law is very clear and marijuana traffickers are not welcome in Ohio,” Yost said.

The state is still writing the rules that will guide Ohio farmers when they start to grow hemp under the new law. Ty Higgins, Ohio Farm Bureau spokesman, said the bureau is waiting to learn more so it can guide farmers who decide to grow the crop.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, said Yost’s creation of a grant program for marijuana testing “is certainly helpful and we appreciate his support.”

“It will not entirely alleviate our concerns though,” Tobin said. “The grants will be available to pay for testing in felony level cases. This still leaves prosecutors’ offices to pay for private testing in misdemeanor cases, which could be cost prohibitive, or to postpone the prosecution of cases for several months until testing is available through the Bureau of Criminal Investigation or another public entity.”