Police's crime lab test does not tell the difference between legal Hemp and illegal Marijuana
A viral Charlotte Mecklenburg Police arrest is now raising questions about how the department tests marijuana.
Can CMPD’s crime labs tell the difference between legal hemp and illegal marijuana?
Christina Pierre and Anthony Lee claimed they were smoking legal hemp at a bus stop on West Arrowood in November when police approached them.
One of the officers asked if the couple was smoking weed.
Lee replied, “It’s the stuff from the store. They sell it at the store. It’s THCa,” while gesturing toward a nearby smoke shop.
The officers proceeded to arrest Lee. Pierre interfered, causing a massive police response, a viral video, and a suspended police officer.
“The substance they were in possession of was certainly illegal marijuana,” CMPD Chief Johnny Jennings said. “It was at a level much higher than anything you’ll get in buying hemp or anything with THC at a store that sells it legally.”
Lab results from CMPD crime lab show the substances tested positive for Marijuana tetrahydrocannabinol, but cannabis lawyer Rod Kight says the lab used a gas chromatography test, creating flawed results.
“What the lab did that tested this particular sample is it actually created illegal marijuana from legal hemp,” Kight said. “In other words, it created the very compound that it was looking for, and in creating that, it then determined that this was illegal marijuana, even though it was only illegal marijuana because the test created it.”
Kight says the High Performance Liquid Chromatography test can detect legal hemp from illegal marijuana, but it’s more costly, reasonably new, and most departments aren’t using it.
“Now that hemp is legal, the test has to be different because now legal forms of cannabis what we call hemp under the law can contain THC,” Kight said. “So, it’s important that the test properly measure the amount of THC in the sample to determine whether or not it’s legal.”
When it comes to handling legal hemp, Chief Jennings says officers assume anything that smells like weed is weed until proven otherwise.
“What you have to be able to do as an officer is the assumption that it is marijuana, and once you do the testing, if it’s something that warrants an arrest for marijuana, it’s incumbent upon us to prove that it is marijuana,” Chief Jennings said. “If we don’t want officers to address misdemeanor marijuana use, then make it legal.”
Kight says smoking legal hemp in public is assuming a risk that you may be confronted or arrested by police. He says you can keep your wrapper or receipt handy, but that’s not a foolproof way to avoid police encounters.
“This is a fairly new product on the market,” Kight said. “I think law enforcement does not necessarily understand what it is.”
Under the 2018 Farm Bill, hemp with less than 0.3% THC is legal.
