Marijuana is still largely prohibited in Virginia, but Industrial Hemp and hemp products such as CBD are legal to grow, manufacture and sell (with a license) and legal for purchase with little restriction. But both terms are just referring to different strains of the Cannabis sativa plant. So what happens when a legally-purchased product is subjected to the testing technology currently in place by law enforcement?
According to testimony by a Virginia Department of Forensic Science expert in one of our recent cases, the field test currently in widespread use by law enforcement across the country is fundamentally incapable of making the distinction between prohibited marijuana and legal industrial hemp contemplated by the law on the issue. In addition, the processes currently in place in the DFS crime laboratories are not designed to undertake the quantitive analysis for THC seemingly required by the statute.
What this means for marijuana prohibition in Virginia and elsewhere is not entirely clear. Certainly cannabis above unlawful THC levels and produced outside state and federal regulations remains prohibited. However, the official position of the Virginia Department of Forensic Science is that the ONLY way to tell the difference between prohibited marijuana and perfectly legal industrial hemp and hemp products is to undertake a somewhat complicated, time-consuming, and expensive scientific process. At the time of this writing, there is currently NO reliable field test available anywhere that is able to conduct such a process even at the preliminary level. In addition, Virginia's DFS crime labs are already overwhelmed dealing with our opioid epidemic. At present, it takes upwards of six months for the DFS to turn around a lab certificate for suspected narcotics. Just this year Virginia has started off-shoring lab work to out-of-state laboratories. It does not seem reasonable to expect the DFS to be equipped to handle the pure volume of producing lab certificates for every single marijuana possession case.
Other jurisdictions are experiencing the same issues. In places like Columbus Ohio, Baltimore, and Tallahassee, law enforcement and/or prosecutors have responded to this issue by effectively decriminalizing simple misdemeanor marijuana possession, finding the process of reliably distinguishing prohibited marijuana from legal industrial hemp to be too expensive and time-consuming. What Virginia will do about this remains to be seen - news breaks in this area almost daily. But one thing is certain: state and federal lawmakers seem to have let this genie out of the bottle. Getting it back in will be far easier said than done.
(As always, every case is different, and deserves specific legal attention, research, and advice. If you or someone you know is facing charges related to Virginia's marijuana prohibition statute, we encourage you to set up an appointment for a free consultation.)