Nebraska Legal Hemp Law Complicates Some Pot Busts
By Bill Kelly , Senior Producer/Reporter Nebraska Public Media
Aug. 3, 2020, 11:38 p.m. ·
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Legalizing industrial hemp in Nebraska last year brought on unintended consequences that some say will demand a revision to the popular law. It turns out prosecuting some marijuana possession cases have become more difficult and in some charges have been dropped.
A portion of the bulletin issued by the State Patrol Crime Lab. (NSP)
State Patrol technician performs drug analysis. (NET News File Photo)
The statutory definition of in the Hemp Act that sets legal limits on THC levels.
One county attorney went so far as to claim the state "accidentally" legalized pot in small quantities. It's an extreme characterization, but others agree prosecuting some cases became challenging and costly in some jurisdictions.
When Nebraska legalized industrial hemp in 2019, state senators built into the law a method to differentiate the legal crop from marijuana. In Nebraska, recreational and medical use remains illegal. The new law set limits on how much THC could be allowed in the plants grown or transported in Nebraska. THC, or tetrahydrocannabinol, is the psychoactive component giving users the sought after high.
"Failure to prove this element beyond a reasonable doubt will, by law, result in an acquittal," said a county attorney concerned with the impact of the law.
That section of the new state statute raised the caution flag with police and prosecutors who recognized the new law risked complicating some marijuana arrests.
"After this bill took effect, the first folks to bring it to my attention was law enforcement," said Colfax County Attorney Denise Kracl. She convened a meeting with the sheriff, City of Columbus police and the members of a regional drug enforcement task force. They made the case it could be a problem building a case when they make arrests for low quantity marijuana possession.
Kacel asks, "if someone gets pulled over with marijuana, how do we know what the THC content is, of the drugs that we seize, if we aren't able to test them this is hemp, or this is marijuana?" It takes sophisticated technology to measure the chemical content. Kacel said, "we do not have a lab in Colfax County, or near Colfax county that has the ability to test the THC content."
Smaller counties routinely use the Nebraska State Patrol's crime lab. State funding absorbs the cost for the local agencies. In 2020, the lab already handled nearly two thousand tests of drugs confiscated. Demand is so high results can take up to three months before delivered back to local law enforcement.
In December 2019 the NSP Lab sent out a notice to police agencies announcing the availability of THC testing "to ensure no hemp plant material is misclassified as marijuana." The bulletin added that the method being used could only validate chemical levels on "plant material samples," meaning no derivative marijuana products, like edibles, can be tested.
What stood out for prosecutors was the news that "due to resource allocation, no testing would be provided for infraction level plant material cases."
The lab's administrators felt the additional responsibility of analyzing small quantities of suspected marijuana could significantly increase the workload and further slow the turn-around time of results. The new method would take 2 to 3 times longer than the old, less precise, technology.
Testing is not an issue for Douglas and Lancaster Counties, the state's two populous jurisdictions. Each is equipped with their own crime labs serving agencies within their boundaries and assisting others when needed.
County attorneys contacted by NET News were frustrated but understanding.
Carl Hart, the prosecutor in Platte County, said, "the state lab just can't keep up, so I don't blame the state lab."
According to Hart, that "presents a challenge to law enforcement to the extent that I think some counties are continuing to seize it when they encounter it."
In Platte County, that meant going to "Plan B."
Plan B, according to Hart, has been adopted by small counties paying for the testing themselves, rather than the state-funded lab. Platte County uses the University of Nebraska Medical Center lab for its small batches of pot.
In Colfax County, Kracl says she will not be, in her words, be "bought out of a case" when faced with the choice between paying for cannabis testing or dropping charges. Her county board agreed to pay the price for independent testing. Costs go beyond the lab test. If the case goes to trial, the lab technician who processed the material would likely be asked to testify at trial. Their fee and travel stipends add to the bill paid by taxpayers.
Kracl says it is not an easy choice for some counties. "How much time and resources (are you) going to put into a $300 marijuana first-possession ticket."
"That's the balance that prosecutors have to face and deal with in these particular situations."
In some counties, police made a case for small quantity possession, but county attorneys elected not to prosecute. In one instance, a prosecutor, who asked for anonymity from NET News, dropped charges against a student selling small quantities at school because the case could not be made without lab testing of the THC content.
Mark Porto, a defense attorney out of Grand Island, advises people to note the state has a greater burden to prove it's not legal hemp.
He believes they should "exercise their right to a trial and do the best they can and require the state or ask the prosecution to show with evidence that what they have is marijuana as defined by law rather than hemp."
"There's that's absolutely something that I would encourage people to do."
Colfax County prosecutor Denise Kracl agrees there is an ethical responsibility to make the case as defined by the law.
"We need to make sure before we put people in jail; before we try to punish them in some way, to make sure that we actually have a substance that is, in fact, marijuana."
"The Constitution absolutely protects citizens from government and this is an example where government needs to be extra careful that we are only prosecuting folks who were committing a crime."
State Senator Dave Murman of District 38 in central Nebraska, would consider adjustments in the law.
"Law enforcement is reluctant to even try and enforce it," said Murman, "and it's a challenge for the courts to prosecute, because the fine is still so low.
Murman was a co-sponsor of the bill that passed as an advocate of hemp being a viable crop for Nebraska farmers.
As a solution to the prosecution dilemna he suggests "possibly raising the fine of the small amount of marijuana." He maintains higher fines "would make it more worthwhile to get it tested" and allow prosecutors to advance cases if those being cited are "doing something illegal, rather than just transporting industrial hemp."
We made several attempts to speak with the bill's original sponsor, Senator Justin Wayne of Omaha, but got no response.
During public hearings in 2018 no one spoke in opposition to the Hemp bill at the time. Only a few senators voted against on final reading.
"There wasn't a lot of concern in general on the floor," observed Murman. "I think a bigger concern is if so-called medical marijuana would pass. I think with industrial hemp if the rules and regulations are enforced correctly that that can be a safe alternative crop with a lot of potential.
Another of the bills sponsors, Senator Julie Slama of District 1 said in an email response, "I've not received any concerns from my local law enforcement officers on this issue and am always open to discussions with law enforcement and prosecutors to ensure they have the resources necessary to protect our communities."
It does not appear there have been a large number of cases where people are going to court and forcing the costly tests.
Defense attorney Mark Porto has yet to use hemp testing as a defense for a client. He handles cannabis trafficking cases involving larger quantities. Porto said he has heard police in some communities hope to get an assist from suspects to avoid testing.
During drug stops some officers "when they suspect that there's marijuana, they expressly ask them 'is this marijuana (or) is this hemp?' They kind of ask it in a casual way, hoping to get the admission from someone."
While he hasn't seen it tested in court, Porto says the admission could "make the testing requirement not as critical."
One prosecutor who believes the law made it all but impossible for some counties to go to court on these cases told me he is "still getting convictions because people don't know any better and they plead guilty."
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