Recently NBC 12 Investigative Reporter Rachel DePompa ran a story featuring a recent case of ours where a marijuana possession charge was dismissed after our expert informed the court that the technology used by the prosecution was fundamentally incapable of telling the difference between prohibited marijuana and perfectly legal industrial hemp. The above clip is the story that has run on the Richmond NBC affiliate. The full story from NBC12 is available here.
I commend Ms. DePompa for her thoughtful and thorough treatment of this very technical legal question. I would add to this story that this issue doesn't just apply to or affect those who can prove that what they purchased was legal (such burdens of proof on defendants generally run afoul of the Fourth Amendment Constitutional right to due process). Instead, it seems as though the current state of affairs in Virginia (and possibly elsewhere) is such that the two main ways the prosecution might attempt to prove that a substance was prohibited marijuana - the field test and the laboratory certificate - are fundamentally flawed due to their incapacity to rule out that the substance isn't a perfectly legal industrial hemp product.
The law on these matters is far from settled. Indeed, I believe this issue raises other questions, such as whether the long-held standard that an "odor of marijuana" alone can satisfy the probable cause requirement for the issuance of arrest and search warrants, as well as make permissible certain warrantless searches and seizures. If, as is the official position of the Virginia Department of Forensic Science that the only way to tell the difference between marijuana and industrial hemp is through a reliable quantitive analysis of THC, then odor, sight, touch, and other sensory information simply is not reliable enough to establish "probable cause" to believe that prohibited marijuana is present, and therefore some statute is likely being broken.
The case that we believe might be most subject to a review in light of the changes in the law related to marijuana prohibition is US v. Humphries, among others.
Since this story ran we have had many requests for the transcript of this case. We have made that available here. (Side note - if you feel so led as to pitch in to cover some of the costs of these, including the transcript, feel free to contribute to our venmo.)
On page 33 of the transcript of the case is where we called our witness, the Virginia DFS scientist and expert who testified that the Virginia crime labs are not currently testing suspected dry marijuana for THC content, and that a positive result on a field test currently in use throughout Virginia does not necessarily mean the substance contains ANY THC, let alone that the THC present is above the limits imposed by state and federal law. What that means, in the expert's own words, is that current technology is fundamentally incapable of differentiating between illegal, high-THC prohibited marijuana and perfectly legal, low-THC industrial hemp products.
It remains to be seen what the implications of this case will be, or where the laws prohibiting marijuana are headed in Virginia and elsewhere. Stay tuned to this space for more updates on our work.