First and foremost, there have been recent changes in the law concerning what is defined as marijuana and THC (Tetrahydrocannabinol) under the Texas Health and Safety Code. I discussed these changes in the law in a recent blog post TX Hemp & Marijuana Law – New Laws for 2019.
Essentially, the new law states that any plant or substance derived from a plant, that has a THC concentration less than 0.3% is no longer defined as a controlled substance (or marijuana) for purposes of the Texas Health and Safety Code’s punishments for related offenses.
WHY TO NEVER PLEAD GUILTY TO POSSESSION OF MJ OR THC
1. TX crime labs Cannot quantify how much THC is in ANY substance
None of the Texas crime labs that are used to test for the presence of controlled substances has the ability to test for the QUANTITY of THC. The only thing that they can test for is the PRESENCE of THC. The GC/MS laboratory analysis are very sensitive, and can detect even 1 mg of THC, however, they DO NOT have the ability to quantify how much THC a suspected substance has.
This creates a HUGE problem for District Attorney’s Offices across the state. Simply put, they cannot prove that the suspected substance is actually controlled and regulated as a PG 2 substance, marijuana, or Hemp, because it has a THC concentration below the threshold level.
2. New law has enactment date of September 1, 2019 – HOWEVER, statutory construction dictates it be applied to ALL future cases.
Without nerding out too much…follow me on the statutory construction of a new law like the Texas Hemp Farm Act to understand WHY THE NEW LAW IS RETROACTIVE:
- The new law is outside the Texas Penal Code
- The new law is ambiguous because it has an enactment date, but no enabling legislation or a savings provision (basically this means that the new law does not specify to what offenses it applies to; eg, if a person is arrested before the enactment date and tried after the enactment date.
- When a law is ambiguous, the Texas Government Code gives guidance in the interpetation and application of a new statute under Chapter 311, TX GOV CODE.
- Under the Texas Government code: “If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.” TX GOV CODE 311.031(b)
- Since the penalty or punishment for substances with less than 0.3% THC is reduced, the new statute applies, despite when the alleged offense was committed.
- Applying the new Statute requires that the jury find beyond a reasonable doubt that the substance you were alleged to have possessed contained a THC concentration over 0.3%.
3. If they cannot prove the quantity of THC in a given substance, they cannot prove guilty Beyond a Reasonable Doubt
The labs cannot tell the difference between 95% THC and 0.00001 % THC.
BEFORE YOU PLEAD GUILTY TO POSSESSION OF THC OR MARIJUANA…
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