Ohio’s Legalization of Hemp Complicates Probable Cause for Marijuana Charges

You might be able to get away with having weed on your person in Ohio, at least until state law enforcers can properly test for the differences between hemp and marijuana.

Last week, Gov. Mike Dewine signed a bill legalizing the cultivation of hemp in Ohio. Shortly thereafter, Ohio Attorney General Dave Yost sent a letter to prosecutors urging them to put a hold on conducting marijuana possession charges until the cannabis can be tested.

This is because it’s impossible to detect the difference between hemp and regular weed just from looking at them. Both substances derive from the cannabis plant, yet contain various percentages of tetrahydrocannabinol, aka THC, the main mind-bending chemical in cannabis.

“Until these testing requirements are fixed and until we get some additional training and resources available to us, it’s going to be very difficult to go after any marijuana cases in Ohio,” Jason Pappas, Vice President of the Ohio Fraternal Order of Police, told 10TV.

In fact, the Columbus Dispatch reported today that not even drug-sniffing dogs can differentiate marijuana from hemp, which is defined as having less than 0.3 percent THC content. This has led both the Ohio Highway Patrol and the Columbus Division of Police to cease imprinting their dogs with the odor of marijuana.

However, there are other ways to test for THC levels. According to the Cincinnati Enquirer, Ohio’s Bureau of Criminal Investigation labs are beginning the process of buying equipment that can assess THC content. The highway patrol is getting $140,000 and the attorney general’s office is receiving $968,000 for testing equipment. As soon they notify the Ohio Department of Commerce, Ohio’s three medical marijuana testing labs can enact the test.

When congress passed the Farm Bill in 2018 and removed hemp from its controlled substance list, they laid the groundwork for states to do the same. The issue of gray area around the law has cropped up in a number of other states that have legalized hemp but not weed, including Texas, Florida and Georgia. 

Other than essentially opening the market for hemp-derived CBD products, it’s impossible to tell what the effects of hemp legalization are going to be for Clevelanders, or how it’s going to play out on the street. In a statement, the Ohio State Highway Patrol said they would continue prosecuting marijuana cases and would make arrests based on a combination of factors that suggest “probable cause,” such as a bong or rolling papers.

“They’re going to have to look at everything they see, everything they smell, how they’re answering the questions,” Staff Lt. Craig Cvetan told the Enquirer.

The situation in Columbus encapsulates the confusion surrounding the legal status of weed throughout the state. Last week, city Attorney Zach Klein effectively legalized pot possession, announcing that he would cease prosecuting misdemeanor cases. And yet, in an article posted Friday, Klein told the Enquirer that the drug remains illegal and is still a legitimate reason to stop and search someone. He noted that this is true when it comes to driving under the influence of marijuana as well.

It seems that, caught in the space between legalization and criminalization, prosecutors will have to decide for themselves what probable cause looks like in Ohio.

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This article appears in Aug 7-13, 2019.