CHESTERTOWN — Changes in state law that legalize the manufacture, possession and sale of hemp could make it more costly and challenging to prosecute marijuana offenses, according to the local law enforcement community.
In separate interviews, Kent County Sheriff John F. Price and Chestertown Police Chief Adrian Baker expressed concern but said it would not affect their policing, while Kent County State’s Attorney Bryan DiGregory said the determination to prosecute would be made on a case-by-case basis.
House Bill 1123: Agriculture-Hemp Research and Production was passed unanimously by the House of Delegates and state Senate, and approved by Gov. Larry Hogan during the 2019 General Assembly session. It went into effect June 1, establishing the Hemp Farming Program to promote hemp as an agricultural commodity in the state, the commercial sale of hemp products within and outside the state, and to facilitate the research of hemp and hemp products.
Del. Jay Jacobs, R-36-Kent, was one of the sponsors of the bill, which passed by a 137-0 vote in the House after a third reading in late March.
According to state officials, two permits to grow hemp in Kent County have been issued.
Hemp and marijuana are two varieties of the cannabis plant, but only can be differentiated by the concentration of tetrahydrocannabinol (THC) within the material.
Marijuana and hemp grows look very much alike, and hemp “can be mistaken by police, or anyone, for being marijuana,” Price said in a telephone interview last week.
The primary difference is the amount of THC in hemp is much lower than marijuana.
Due to the new law, additional testing is required by the Maryland State Police crime lab to report a marijuana finding. The state police Forensics Sciences Division currently does not have the ability to determine THC concentrations, Elena Russo, a spokesperson for the MSP, said.
She said the Forensic Sciences Division is applying for a grant to purchase the equipment to test THC concentrations.
“In the interim, cases in which testing is critical to a prosecution will have to be outsourced to a commercial laboratory for THC concentration testing in order to report a marijuana finding,” Russo wrote in an email.
The cost for outsourcing will be passed on to local jurisdictions, DiGregory said.
Also as of June 1, according to Russo’s email, all items containing suspected marijuana to be submitted to the state police Forensic Sciences Division for controlled dangerous substance analysis must be accompanied by written documentation from the state’s attorney’s office that the case will be prosecuted.
DiGregory said he has advised the MSP that the crime lab “is to continue to analyze anything we send them under the current protocol for cannabis.”
While acknowledging that the new law has been in effect for only two months, DiGregory said his office has not dismissed any marijuana cases because of it.
“Up until this point, it’s not an issue that we’ve been challenged on,” DiGregory said in a telephone interview July 22. “It’s a consideration. We know it could be an issue, but we can win these cases on the circumstances.”
How the product is packaged and its amount, plus other pieces of seized evidence such as scales, a smoking device or grinder, can assist in prosecution.
“Circumstantially, you can establish that it’s marijuana, not hemp, and it’s not being used for the same purposes as hemp,” DiGrgeory said. “Our perspective is that we can still prosecute, but we are exercising our judgment in cases.”
Baker said the new legislation presents a “viable concern” but has not affected how his officers enforce the marijuana laws.
Ditto for Price.
“We’re still going to arrest people,” the sheriff said. “We’re not going to turn a blind eye because anything over 10 grams is an arrestable offense.”
In Maryland, since 2014, possession of less than 10 grams of marijuana is not a criminal offense. It is illegal, but carries only a civil penalty — a fine of $100 for the first offense and up to $500 for a third or later offense.
“I’m not going to stop arresting people as long as there is a law that says it’s illegal,” Price said. “If they want to make it legal, make it legal. While I do understand that there is medicinal help from marijuana, I don’t support it because I think it’s a gateway drug.”