Can police distinguish hemp from marijuana?

LAREDO, TX (KGNS) - Just last year, Texas signed into law the regulation of hemp as long as its THC quantities are below a certain percentage.

This has created a problem for law enforcement agencies throughout the state as it has many similarities with another plant that happens to be illegal.

HB1325 was signed into law back in June of 2019. It pretty much defines any cannabis plant with levels of THC, the chemical ingredient that gives a high, under 0.3% as hemp but according to an attorney, the new law has made the term 'probable cause' gone up in smoke.

We tagged along with Mario Reyes, a deputy with the Constables Office for Precinct 1, as he showed us hot spots for illegal activities.

"Still the common drug that they see smuggling through the river, that they are willing to take the risk with is marijuana."

Through Stonegarden, a federal grant, constables along with the Laredo Police Department and the County Sheriff's Office patrol areas to help deter high areas of human or illegal drug smuggling.

"The only thing that's legal right now in the state of Texas is hemp, and it has to be 0.3%."

The reason behind it, a 2019 Texas legislature law, HB1325 attorney Don Flanary explains.

"Previously, marijuana was defined as the plant cannabis sativa l, so if you possessed any portion of the plant cannabis sativa l, that's marijuana. That's illegal. It could be a misdemeanor, it could be a felony in large amounts. Now, the definition of marijuana is the cannabis sativa l with a concentration of THC over .3%.”

But Flanary says the law has ignited some problems.

"There's no possible way to visually inspect cannabis sativa l and be able to determine the difference between hemp and marijuana."

Deputy Reyes says marijuana usually has a THC concentration around 12% or higher.

"If you look at it, at naked eye it's going to look like marijuana. The only difference is the THC level, so how are we going to distinguish?"

A Texas Tribune report points to the recent case of man jailed almost a month for transporting over 3,000 pounds of a leafy substance, which later turned out to be legal hemp.

"You cannot tell the difference between either of them, so what that means is when an officer says he smells marijuana on someone, that's not probable cause to search. When an officer finds a green leafy substance that looks like cannabis sativa l, that's not probable cause to arrest."

For now, law enforcement agencies will have to rely on their training and expertise during every encounter.

"Enforce the law, make an arrest, let the distinguish 0.3% less of higher and let them make the call."

At least until the lawmakers roll out new guidelines that could provide tools and resources.

"If they could provide something that we can go by, that we can tests small amounts of it out on the field like field tests."

Flanary says in the meantime, there's a certain group that will be highly affected by the current state of the law.

"The sad part about it is the only people that are going to be punished are poor people, who can't afford good lawyers, who get court appointed lawyers that either don't know the law or don't care about the law and they plea them."

We reached out to the District Attorney's Office for comment regarding the new law and new procedures in prosecution, but we have not received a response.

Although we have not been able to confirm a similar case in our area, law enforcement personnel we spoke with say it could be just a matter of time.

The 2019 law came just a year after President Trump's 2018 federal farm bill which allowed states to develop their own plans and regulation of hemp.