The short, unhelpful answer is that hemp is legal and marijuana is not. The long, helpful answer is much more complex.
In many Cobb County criminal cases, the difference between hemp and marijuana is the $64,000 question. These substances are both cannabises. They look alike. In fact, if you have hemp in one hand and marijuana in the other hand, you cannot tell the difference between the two. So, in possession cases, prosecutors are hard-pressed to show that the substance in the defendant’s possession was illegal.
“Stoned driving” cases work a bit differently. In a DUI, the legality of the substance is irrelevant. Most people over 21 can legally consume alcohol, but it is illegal to drive under its influence. The same is true of marijuana. Proving impairment in court, however, is a different kettle of fish.
The overall legal context is important here. In Georgia, both hemp and medical marijuana are legal. So, many Cobb County jurors view marijuana as a public health issue as opposed to a criminal law issue. That’s especially true in POM (possession of marijuana) cases, as outlined below.
Possession of Marijuana
Some cities have decriminalized POM cases. However, these are executive decisions which could be rescinded tomorrow. State law still has very stiff penalties for marijuana possession, despite the expansion of legal hemp production and the medical marijuana law. Possession of less than one ounce could mean a year in jail and a $1,000 fine. That’s pretty severe punishment for a partially-smoked joint.
Most criminal law cases have basically two parts: the arrest and conviction. Sometimes, officers lack probable cause for the arrest. But that’s usually not the case in POM matters. The venerable “I smelled marijuana smoke” line has fully justified countless police stops over the years. Many of these tops were questionable at best.
The smell of marijuana smoke is pretty much impossible to independently prove or disprove. So, the officer’s testimony is always sufficient to prove probable cause.
Guilt at trial, however, is another matter. To obtain a guilty verdict in a POM case, Cobb County prosecutors must do the following three things.
Produce the Substance in Court
This first prong is usually not a problem in joint cases, but it could be a problem in dime bag or other such cases.
To seize such evidence, officers must either have a valid warrant or a search warrant exception must apply. Advanced drug trafficking cases often involve search warrants, but in simple possession cases, which constitute over 80 percent of the drug cases in Cobb County, officers hardly ever bother with warrants. So, an exception must apply. Some common exceptions include:
- Consent: Owners or apparent owners may give officers permission to search a vehicle or building. An “apparent owner” is someone like a family driver whose name is not on the title.
- Plain View: When they see drugs or other contraband in plain view, officers may seize it. Enhanced plain view cases are often an issue. Officers clearly cannot use microscopes or telescopes to bring items into plain view. Using a flashlight to peer into the back seat is in a gray area.
- Exigent Circumstances: In emergency situations, officers may enter a vehicle and make sure everyone is okay. That situation could be a stalled car on the side of the road or two people fighting in a car. While there, they can seize any evidence they find in plain view.
The state has the burden of proof to establish that a search warrant exception applied. Otherwise, the judge must throw the evidence out of court under the exclusionary rule.
Prove the Substance was Illegal
This is where things have really changed. Hemp and marijuana are indistinguishable from a physical standpoint. They look and smell alike. To establish the difference, at least beyond a reasonable doubt, the state must run a THC content test. The test is definitive. If the THC content is above .03 percent, the substance was marijuana. End of story.
The trouble is that these tests are unavailable in many places, and where they are available, they are expensive.
A Marietta criminal defense attorney has the right to know if the state tested the substance and the THC content was below .03 percent. That’s exculpatory evidence which must be disclosed, and must be disclosed several weeks before the trial date.
Prosecutors cannot use the defendant’s statements to establish that the substance was marijuana. Under Georgia law, statements against interest are generally only admissible if the declarant is unavailable. Refusing to testify in court does usually not qualify as unavailable. Even if the statement is admissible, it’s only the defendant’s opinion that the substance was marijuana.
Prove the Defendant Possessed the Substance
Frequently, if officers pull over a vehicle which contains several people and officers find pot, or what they believe to be pot, they arrest everyone in the car. Generally, such charges do not hold up in court. That’s because, to establish possession, Cobb County prosecutors must show all of the following:
- Proximity: This element is often present. Legally, if the defendant and the item were both in the car’s passenger area, they are proximate to one another.
- Knowledge: It’s not enough to smell marijuana smoke. The defendant must know that there was marijuana in the car.
- Control: This element often comes up in dime bag cases. A defendant could literally be sitting next to a stash and not possess it. For example, the stash might be in a locked glove compartment.
Because of these proof problems, many Cobb County courts have expanded their POM pretrial diversion programs. Once, only people with clean criminal records qualified. Now, since these changes are so difficult to establish in court, almost any POM case qualifies for diversion, at least in many courts.
Defendants who complete pretrial diversion do not have conviction records. It’s also easier to get the arrest record expunged or sealed.
Reach Out to an Experienced Lawyer
Hemp legalization has made marijuana possession cases almost impossible to prove in court. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.