Ohio Accidentally Legalizes Marijuana
August 13, 2019 5:42 AM   Subscribe

Ohio recently legalized the cultivation of hemp, up to a THC level of 0.3 percent. However, few crime labs in Ohio can test the actual level of THC. Some prosecutors — including the City Attorney of Columbus, the state capital — have said that, in the absence of precise testing, possession of marijuana is effectively legal now.
posted by Etrigan (48 comments total) 18 users marked this as a favorite
 


Pennsylvania's industrial hemp law also has a below 0.3% THC requirement, but I haven't heard anything about it considered de-facto legal here. I wonder if the licensing to grow hemp in PA makes a distinction?
posted by jrishel at 6:09 AM on August 13


Not sure that I would take a prosecutor’s word on what they’re unable to prosecute me for.
posted by chappell, ambrose at 6:15 AM on August 13 [64 favorites]


yeah, this seems like a political play by the cops, who for whatever reason (we know what reason) are opposed to marijuana legalization.
posted by Reclusive Novelist Thomas Pynchon at 6:19 AM on August 13 [10 favorites]


My guess is that affluent people who can afford clever attorneys will be able to use this to avoid prosecution... less privileged people using a public defender... maybe not so much.
posted by DirtyOldTown at 6:20 AM on August 13 [20 favorites]


So red states are going green. This means there will be a renewed ‘War on Drugs!!!’ ? Frankly it’s hard keeping up with red-state Puritan-Pretzle-Logic.
posted by From Bklyn at 6:27 AM on August 13 [3 favorites]


Oh-High-O.
posted by thivaia at 6:32 AM on August 13 [10 favorites]


This also seems like the kind of thing lower court judges may decide based on personal inclination. I'd love to see progressive judges dismissing cases in waves, but in Ohio I'm thinking it will be more like conservative judges ignoring completely legally valid defenses based around this simply because they'd like to see a particular defendant in jail.
posted by DirtyOldTown at 6:37 AM on August 13 [7 favorites]


This means there will be a renewed ‘War on Drugs!!!’ ?

Joe Biden Is Coming For Your Legal Recreational Weed
posted by thelonius at 6:39 AM on August 13 [6 favorites]


Huh, wonder if that is the case for Kentucky too, since our hemp products are also about .03% THC.
posted by Young Kullervo at 6:48 AM on August 13


We have a similar issue here in NC. Its not really that the labs CAN'T determine the % exactly, its that it would require new equipment, personnel, and training, which no one in the state legislature wants to spend the money on when that money could be better spent "fighting the opioid" crisis.
posted by Captain_Science at 6:51 AM on August 13


Sounds like the kind of mistake you'd make while you were stoned
posted by dis_integration at 6:54 AM on August 13 [5 favorites]


My guess is that affluent people who can afford clever attorneys will be able to use this to avoid prosecution... less privileged people using a public defender... maybe not so much.

Yeah, this seems like the worst way to have weed legalized - it takes some of the incentive off the legalize movement because it's generally considered legal for non-marginalized folks, but the state can still prosecute those who don't have money to fight (not to mention the lack of retroactive justice measures you see with actual legalization in Illinois and New York).
posted by dinty_moore at 6:56 AM on August 13 [23 favorites]


The 2018 Farm Bill already did this at the federal level.
posted by odinsdream at 7:01 AM on August 13 [1 favorite]


This also seems like the kind of thing lower court judges may decide based on personal inclination. I'd love to see progressive judges dismissing cases in waves, but in Ohio I'm thinking it will be more like conservative judges ignoring completely legally valid defenses based around this simply because they'd like to see a particular defendant in jail.

While it may well shake out this way in the long run, this article: Columbus drops pending misdemeanor pot charges; hemp legalization poses issue for Ohio prosecutors, points out that
"10TV obtained a letter the Ohio Attorney General's Office sent to every prosecutor in the state.

It says in part:

"BCI is in early... stages of validating... methods to meet this new legal requirement," something they say "may take several months."

Therefore, BCI is recommending prosecutors, "suspend identification of marijuana testing... in your local jurisdiction by law enforcement personnel previously trained," and, "do not indict any cannabis-related items" until your crime lab can determine level of THC."
(emphasis mine)
(BCI is the Ohio Bureau of Criminal Investigations.)

How expensive new testing equipment is and how long it takes to get the whole process set up and going is TBD, but for a while it seems law enforcement in general is going to choose to ignore at least misdemeanor-level offenses rather than take a chance on having those convictions overturned later.
posted by soundguy99 at 7:05 AM on August 13 [4 favorites]


" actual legalization in Illinois"

I am so excited for legalization even though I am not a pot person! I mean partly because of the redirection of resources away from recreational pot users, that's always been wasteful, but mostly because EVERY. SINGLE. ONE. of the ritzy-ass suburbs around me has passed a zoning ordinance forbidding the new dispensaries and head shops, and MY suburb already has a draft zoning ordinance allowing it and given tentative approval to a specific high-end head shop to open in a commercial strip, and all I can think about is that sweet, sweet tax revenue.

I'm sure it'll be a temporary thing -- in five years when they've been open a while and the world doesn't end, all the surrounding suburbs will relax their bans -- but for those five years when all the neighboring towns are being uptight puritans about it, my town will be raking in the dough.
posted by Eyebrows McGee at 7:11 AM on August 13 [19 favorites]


As an Ohio resident, though, it seems to me that this hemp legalization thing came out of the blue, and I remain mystified as to why our Republican governor & Republican-dominated state legislature would choose to create and pass this bill. There's a little vague hand-waveium out there about new cash crop for farmers, but I remain suspicious that there's some catch to this that hasn't come clear yet - like the hemp industry becomes de facto dominated by massive multinationals who are the only ones who can afford the licensing fees or something.
posted by soundguy99 at 7:13 AM on August 13 [5 favorites]


Should they order and commission forensic THC testing facilities, I trust they will give the state's hemp users fair warning in advance.
posted by acb at 7:32 AM on August 13


Unfortunately, even if possession is no longer criminally charged, it can (and I'm sure will) be used as a pretextual basis for searches. As long as marijuana possession is still illegal on the books, then evidence of that possession is a crime, and basis for search, seizure and arrest. How I've seen it work is that once word gets around that marijuana possession is legal, people stop hiding their use, and so are vulnerable to police searches and seizures, which can lead to other problems completely unrelated to marijuana possession. Also, people not concerned with the illegality of marijuana tend to make incriminating statements to police about their marijuana use, which can cause huge problems for people whose cases end up going federal, where being an "unlawful user" of a controlled substance while engaged in other conduct (e.g., possessing an otherwise legal gun) can lead to years in jail.
posted by skewed at 7:34 AM on August 13 [11 favorites]


The 2018 Farm Bill already did this at the federal level.

Following that link, it appears that the latest federal regulations for hemp say that states can either invent their own licensing regime for hemp growers, or else the new federal one will apply to them. Naturally a government must expand into every bureaucratic niche available to it, so this must be Ohio implementing what's required to meet their obligations in this respect.

To nobody's surprise, the police use it as an excuse to demand more money ("until we get some additional training and resources..."), the local crime lab sees it as a way to sell a new product ("BCI is in early stages of validating methods to meet this new legal requirement"), and the media sees a fun story they can use to capture more page views or whatever. "Did Ohio lawmakers accidentally legalize marijuana?" Consult Betteridge's law to find out.
posted by sfenders at 7:38 AM on August 13 [4 favorites]


Round on the outside, high AF in the middle.
posted by emelenjr at 7:41 AM on August 13 [2 favorites]


AWW YEAH BABY GON GET ME SOME SWEET OHIO SCHWAG!
posted by symbioid at 7:57 AM on August 13 [3 favorites]


How expensive new testing equipment is and how long it takes to get the whole process set up and going is TBD

That's what is the most BS about all of this, is that testing equipment is now small enough to fit in a pocket and is compatible with your phone. And there are lots of companies making these types of testing devices.

And even then, if you want to do a "real"test with an HPLC, every lab/ag-lab will have one, and standards are readily available and fairly cheap.

Potency testing is such a non-issue.
posted by weed donkey at 7:57 AM on August 13 [5 favorites]


I also really hate it when I'm walkin' around with a 1/4 oz of hemp in my pocket and the popo pulls me over and busts me for having weed.

OK I get this is really for industrial production, but really? Who the fuck buys hemp in weed quantities that are for personal consumption?
posted by symbioid at 8:03 AM on August 13 [1 favorite]


Who the fuck buys hemp in weed quantities that are for personal consumption?

People who need strains of cannabis very high in CBD levels, with little-to-no THC. A large portion of medical use of marijuana is with CBD-only strains that do not get you high, but have body-only effects.

Also, Ohio: AHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA this kind of incompetence is so typical of the stupid in most state capitols currently, I just laugh to keep from crying. It's all moot, anyway, federal legalization isn't far away--too much sweet, sweet money to be made in this industry.
posted by LooseFilter at 8:14 AM on August 13 [6 favorites]


The strongest strains of cannabis are about 25%.
posted by Bee'sWing at 8:19 AM on August 13 [1 favorite]


It does kinda make you wonder to what standards other police "tests" are being held.
posted by aspersioncast at 8:20 AM on August 13 [3 favorites]


That's what is the most BS about all of this, is that testing equipment is now small enough to fit in a pocket and is compatible with your phone. And there are lots of companies making these types of testing devices.

And even then, if you want to do a "real"test with an HPLC, every lab/ag-lab will have one, and standards are readily available and fairly cheap.

Potency testing is such a non-issue.

As anyone who has done state purchasing before can tell you, the issue is not that the technology doesn't exist. It's that there is no version of that technology that has been obsolete for a decade and can be sold to you for an astronomical price after a two year RFP period, which may or may not have cost millions in consultant fees. And all that would need to be followed by a ten-year rollout period.

That said, this seems so fishy to me. I would imagine the decision to dismiss a case on these grounds will correlate strongly with the defendant's financial ability to hire a lawyer.
posted by FakeFreyja at 8:38 AM on August 13 [4 favorites]


It's all moot, anyway, federal legalization isn't far away--too much sweet, sweet money to be made in this industry.

And cops can just do racism without the need for a pretext.
posted by Reyturner at 8:41 AM on August 13 [3 favorites]


"You legalized marijuana in Ohio for a time being."

Note the FOP President's use of "you" rather than "we".
posted by RobotVoodooPower at 8:57 AM on August 13


The dodge for any government is that commercial labs have all the tech needed to do the job. Costs would certainly be quite low; this isn't a hard analysis at all. This is easy and simple to contract out. And yes, this can be done for legal and enforcement samples with the appropriate precautions. I am 100% certain of this. This is not a question of capability, it's one of protocols and regulation.
posted by bonehead at 9:21 AM on August 13


As an Ohio resident, though, it seems to me that this hemp legalization thing came out of the blue, and I remain mystified as to why our Republican governor & Republican-dominated state legislature would choose to create and pass this bill. There's a little vague hand-waveium out there about new cash crop for farmers, but I remain suspicious that there's some catch to this that hasn't come clear yet

They looked around the country, saw the tax revenues that can come from weed sales, coupled with the revenue that is almost certainly escaping across the border with Michigan, and decided to get them some of that sweet, sweet profit. It's really as simple as that. Well, that and they probably didn't want to run the extreme embarrassment of legalizing after neighboring Indiana eventually wakes up and accidentally smells the revenue.
posted by Thorzdad at 9:21 AM on August 13


The strongest strains of cannabis are about 25%.

More north of. I routinely see 29-32% in the Portland Oregon area, FWIW. Evans Creek, Archive and Resin Ranchers here locally all produce strains that regularly surpass 30%. My local shop has a good quarter of their stock surpassing 29% THC content, and one awesome little friend that's like 1% THC and 18% CBD.

Noble Farms produced a strain, Roasted Garlic Margy, that clocked in at 35% recently; that's bananas. A full third of the weight of the plant is producing one chemical. Humans breed crazy plants! Plants are fucking crazy!

THC percentage isn't the whole story when it comes to how high you get. Other cannabinoids play a role, CBD is often tested for at the state level, but there are a few others and there's some evidence that the flavor compounds terpenes can alter the experience as well. I mean, cannabis that's 25% THC and indica dominant is going to feel completely different than 25% sativa dominant cannabis. It gets even weirder when you take into account larger percentages of CBD and more level hybrids.

Unfortunately, unlike beer, wine and spirits, where the listed "percentage of the thing that is fun/fucks you up" is fairly similar amongst all products. Whereas with cannabis we're really only scratching the surface on whats tested. Granted, THC is a big part of that, but it isn't the whole picture.

But taxes should still probably be based on THC content, not just by weight of consumable.
posted by furnace.heart at 9:41 AM on August 13 [8 favorites]


CBD and Δ-THC can easily be done in a single test. The tech is at least two decades old. Testing plants isn't a technical issue.
posted by bonehead at 9:43 AM on August 13


It does kinda make you wonder to what standards other police "tests" are being held.

I guess this is a good time to leave this pile of shit here to gaze at with splendor.
posted by rough ashlar at 10:11 AM on August 13 [2 favorites]


I was just trying to put the 0.3 % law in some kind of context. It is really low.
posted by Bee'sWing at 10:46 AM on August 13




Oh, this seems like a trap. Yep. definitely a trap.
posted by captain afab at 11:01 AM on August 13 [2 favorites]


It does kinda make you wonder to what standards other police "tests" are being held.

Most of them are held to no standard other than "make up whatever to get a conviction", because the science behind them is absolute trash.
posted by Copronymus at 11:09 AM on August 13


I guess this is a good time to leave this pile of shit here to gaze at with splendor.
Yup, sounds about right.
posted by aspersioncast at 11:10 AM on August 13


Who the fuck buys hemp in weed quantities that are for personal consumption?

I use cannabis for treating depression and anxiety and panic attacks. I can get farm bill compliant CBD "hemp" flower online, delivered to my house, and it's a really big deal to me that this is a legal method to get stuff that actually helps.

We need to fucking legalize it all, but these baby steps are very helpful.
posted by odinsdream at 11:55 AM on August 13 [8 favorites]


They looked around the country, saw the tax revenues that can come from weed sales, coupled with the revenue that is almost certainly escaping across the border with Michigan, and decided to get them some of that sweet, sweet profit. It's really as simple as that.

Yabbut that's sort of my point; sure, profit motive & tax revenue, but I don't trust these Ohio Republican fuckers as far as I can throw them, so I won't be at all surprised when it works out that the people actually getting the profit are gee gosh golly wow these so-and-so six mega-farmers who just happen (who woulda thunk?) to be Republican Mega-Donors . . . .
posted by soundguy99 at 4:08 PM on August 13 [2 favorites]


CBD and Δ-THC can easily be done in a single test. The tech is at least two decades old. Testing plants isn't a technical issue.

Does the test report results that will be accepted in court? Will the machine manufacturer swear to its accuracy? Have the lab technicians been trained in its use, to such extent that they can swear to its accuracy under oath? Can the results be replicated by an independent lab if the defendant challenges the numbers?

Even if the test were as simple as "does this USB stick have files on it? Here, lemme stick it in a computer and check; I'll screencap what I see in the drive," the fact that it's an entirely new requirement would mean training and rollout time, just so there's a standard method of reporting the results.

Since it involves equipment that most crime labs don't know exist, and haven't the slightest idea where to buy, it takes longer. The testing machines haven't been standardized for court use, and since "test THC potency" has been a sketchy activity associated with borderline-illegal purposes for a long time, there's been no push to make the machines extremely accurate. (Most people care whether their weed is 8% or 18% THC. They may not care whether it's 17.5% or 18.5%. If they do, they're not likely to be in a position to sue the manufacturer over errors.)

Theoretically a court doesn't need to know if weed is 17.5% or 18.5%. But it needs to know, reliably, if it's 0.28% or 0.31%, and the machinery may not be calibrated for that much accuracy. And a machine that can't reliably determine 17.5% vs 18.5% may wind up with all its "this was 0.35%" results challenged and overthrown.

And while probably not the intent of the legislature, this does indeed make it very easy to challenge any marijuana possession charge - and even most intent-to-sell charges. The defendant pleads not guilty, and says, "I was carrying hemp samples; my friends are thinking of setting up a CBD oil business," and the prosecution is stuck trying to prove that was marijuana and not hemp that was being carried. Otherwise, the court needs to throw it out for lack of evidence, since there's a legal standard for "marijuana" and that standard is not "you get high just by being in the room with it."
posted by ErisLordFreedom at 9:09 PM on August 13


Does the test report results that will be accepted in court? Will the machine manufacturer swear to its accuracy? Have the lab technicians been trained in its use, to such extent that they can swear to its accuracy under oath? Can the results be replicated by an independent lab if the defendant challenges the numbers?

Yes, yes, yes, and yes. This tech is from the 70s. HPLC is not new.

In Oregon, methods and certification are actually provided by the state entity ORELAP. Test results have a legal pedigree.
posted by weed donkey at 9:45 PM on August 13


I mean I don't want to say your entire comment is wrong, because the last bit is good, but the whole "testing is impossibly difficult" bit is completely wrong.
posted by weed donkey at 9:50 PM on August 13


I can get farm bill compliant CBD "hemp" flower online, delivered to my house

Hahaha holy shit thanks for this

Yeah I bet they’re looking for a payment processor, but whatever, PayPal to the rescue
posted by schadenfrau at 9:55 PM on August 13


...but I remain suspicious that there's some catch to this that hasn't come clear yet - like the hemp industry becomes de facto dominated by massive multinationals who are the only ones who can afford the licensing fees or something.

I’m in the beverage alcohol business in a state that legalized marijuana products pretty recently, and based on what I’ve seen so far, would predict this is not how it goes down. Instead, a bunch of mid-tier alcohol portfolios (which are not so risk adverse as the “massive multinationals”) will jump in before any of the bigger players.
posted by Insert Clever Name Here at 12:45 AM on August 14 [1 favorite]


“Gwinnett no longer prosecuting misdemeanor amounts of marijuana,” Tim Kephart, WGCL-TV 46 CBS Atlanta, 12 August 2019

At least one other Metro Atlanta county has said the same thing.
posted by ob1quixote at 9:34 PM on August 14


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