An interoffice memo sent to all Department of Public Safety officers in Texas instructs the members of the largest law enforcement agency in the state to stop arresting suspects on marijuana possession charges. This communication marks the most recent twist in the confusion surrounding marijuana law enforcement after lawmakers passed a law legalizing industrial hemp.
The memo instead advises police officers to write a citation asking a suspect to appear in court in order to respond to the criminal charges against him or her. Individuals who receive these citations are still liable to serve a maximum custodial sentence of one year as well as a $4,000 fine for marijuana misdemeanor charges.
The memo adds that department personnel should continue enforcing marijuana laws, but they will only cite and release the suspects.
The interoffice memo, written on July 10, came barely a week before the top Republican leaders in the state (the governor, lieutenant governor and assembly leader) wrote a letter castigating the prosecutors who had either dropped or put marijuana possession cases on hold because of the law legalizing hemp.
In the memo, Randall Prince (deputy director in charge of law enforcement operations, DPS) emphasizes that HB 1325 didn’t decriminalize marijuana, but the change in the law enforcement approach was needed since only a laboratory analysis can prove that a substance is hemp or marijuana.
The difficulty of proving that a substance is hemp and not marijuana is responsible for the decision of many prosecutors to drop marijuana possession cases since the crime labs of the state don’t have the required testing equipment.
However, the DPS memo states that while police officers may be unable to prove beyond reasonable doubt that someone was found in possession of marijuana, it is still possible to find probable cause to institute charges against an individual. The legal burden to prove probable cause is lower than the burden of proving beyond reasonable doubt, and that is why the memo asks officers to issue citations.
That notwithstanding, prosecutors in Tarrant County have decided to send seized samples to a private lab for analysis so that the pending felony cases can proceed. One of the three samples tested was found to have 13 percent THC while another had 15 percent THC. These substances were therefore confirmed to be marijuana while the third sample only contained 0.2 percent THC, which ruled it out as being marijuana.
It isn’t immediately clear how the new directive in the memo will affect marijuana prosecutions given the fact that some exceptions were made in the instructions provided. For example, the cite and release policy directive can only apply if the person suspected to have marijuana is found within the county in which he or she resides. Individuals found outside their counties, such as during traffic stops, will still be arrested.
Secondly, the cite and release policy can only apply in counties where mechanisms are in place to enforce such a measure. For example, a court system should be in place to handle such cases. However, most counties lack the processes needed to enforce the cite and release policy, so the prosecutors in those areas are unlikely to implement this directive.
Commentators wonder what kind of discussions could be taking place in the corridors of industry players like Youngevity International Inc. (NASDAQ: YGYI) and Cannabis Strategic Ventures Inc. (OTCQB: NUGS) about the marijuana law enforcement chaos in Texas.
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