Marijuana and Georgia DUI - What you Need to Know
Marijuana has a very specific definition under Georgia law: Georgia governor Brian Kemp signed the Georgia Hemp Farming Act on May 10, 2019.. The Georgia Hemp Farming Act, or HB 213, changed the definition of marijuana and THC, the psycho-active ingredient of marijuana, to exclude hemp. Hemp is federally defined as a delta-9-THC concentration of not more than 0.3% on a dry weight basis, or the THC concentration for hemp defined in 47 U.S.C. Section 5940, whichever is greater. The GBI crime lab does not test marijuana currently but encourages police to use a 3-part field test. The field test only tests for the presence or absence of THC but cannot tell you the exact percentage of THC. This is not enough to maintain a marijuana prosecution.
As explained in Chambers v. State, 260 Ga.App. 48, 51, 579 S.E.2d 71 (2003) (although officers testified that the cigar contained marijuana, a GBI chemist did not test the substance and could not testify beyond a reasonable doubt that substance was marijuana):
“The crimes relating to the possession or sale of marijuana are very specifically set forth in the Georgia Controlled Substances Act, OCGA § 16-13-20, et seq. In 2003, under OCGA § 16-13-21(16) marijuana was specifically defined as:
all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination.
In 2003, OCGA § 16-13-25(3)(P), which is specifically excluded from the definition of “marijuana” is defined as:
(3) Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers (whether optical, position, or geometrics), and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation: … (P) Tetrahydrocannabinols which shall include, but are not limited to: (i) All synthetic or naturally produced samples containing more than 15 percent by weight of tetrahydrocannabinols; and (ii) All synthetic or naturally produced tetrahydrocannabinol samples which do not contain plant material exhibiting the external morphological features of the plant cannabis.
Given the exceedingly specific and scientific definition of this drug, the instances in which the State could exclude reasonable doubt without performing conclusive, scientific tests on the suspected marijuana would be very rare.” See also Adkinson v. State, 236 Ga.App. 270, 271, 511 S.E.2d 527 (1999) (evidence insufficient where detectives testified that they believed the substance was marijuana and a GBI chemist stated that he thought the material was marijuana but could not testify to that beyond a reasonable doubt). OCGA 16-13-21 and 16-13-25 were changed on May 10th, 2019 by the Georgia Hemp Farming Act and now state:
‘Marijuana’ means all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin;, but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25; and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3.
OCGA § 16-13-25. (Schedule I) (P) (P) Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products as such terms are defined in Code Section 2-23-3.
This new definition brings back to life the underlying rationale of the Chambers case by including the THC percentage requirement. A law enforcement sweep on gas stations in Tennessee selling CBD oil gummy bears nicknamed “Operation Candy Crush ” illustrates the current dilemma of Georgia prosecutors. In 2014, Tennessee removed hemp from the definition of marijuana and THC in its state criminal code, just like Georgia in the Hemp Farming Act. In February 2018, a law enforcement operation named “Operation Candy Crush” in Tennessee, closed approximately 25 retail stores and charged the proprietors with felony drug charges. These stores were caught selling gummy candies made with CBD oil that included some THC. The prosecution was later dismissed because the State Crime Lab could not distinguish whether the CBD oil came from marijuana or hemp. After Operation Candy Crush, state officials conceded that the burden of proof of determining if CBD oil is not legally hemp is on the State rather than the accused. See National law Review, December 4, 2018.
As South Dakota Governor Kristi Noem deftly explained the dilemma in a Sept. 9, 2019 opinion piece in the Wall Street Journal,
“We have to be able to distinguish between hemp and marijuana,” a law-enforcement official in Ohio told a local news station after the Buckeye State legalized industrial hemp. “That is not possible for a human being to do. That has to be done through crime analysis.”
Yet many crime labs are also unable to distinguish between the two plants. They can detect the presence of THC but cannot determine how much is there. The technology to do so exists, but it is expensive and a full crime analysis from a private lab can cost hundreds or even thousands of dollars per test, a price tag too steep for many local law-enforcement agencies. Even if affordable, the results often take weeks.
Not only are these tests expensive but each sample must be processed and treated for hours or days before the suspected marijuana can be tested for THC. Two analytical techniques have been successfully used for testing the potency of cannabis: Gas chromatography (GC) and High Performance Liquid Chromatography (HPLC). There are advantages and disadvantages to each of these techniques. To ensure a uniform sample, lab technicians must follow specific guidelines for random sampling of plant sections to include leaf, bud, and flower if available; dry the plant material for two hours at 35 °C with forced air ventilation; weigh approximately 100 mg of the dried plant material; and then grind the sample to a powder to pass through a 1 mm sieve. The resulting powder is combined with 30 ml organic solvent, sonicated or ultrasonically vibrated for 30 minutes, and filtered. The liquid should then be evaporated to dryness at 200 °C for 20 minutes. Finally, the test substance should be reconstituted in organic solvent and analyzed by gas chromatography. See, Application Note, Cannabis Analysis: Potency Testing Identification and Quantification of THC and CBD by GC/FID and GC/MS, by Timothy D. Ruppel and Nathaniel Kuffel.
The New York Times recently featured a story titled CBD or THC? Common Drug Test Can’t Tell the Difference, New York Times, by Amanda Chicago Lewis, October 15, 2019. This story features a 2012 study published in the Journal of Analytical Toxicology titled, Production of Identical Retention Times and Mass Spectra for Δ9-Tetrahydrocannabinol and Cannabidiol Following Derivatization with Trifluoracetic Anhydride with 1,1,1,3,3,3-Hexafluoroisopropanol* by Rebecca Andrews, Sue Paterson, Journal of Analytical Toxicology, Volume 36, Issue 1, January/February 2012, Pages 61–65. The 2012 study focused on gas-chromatography mass spectrometry, commonly referred to as GC/MS, wherein sampled substances are heating and run through a column which differentiates the substances by their boiling point as evidence by the time it takes the substance to exit a column or tube. The study found that when using a derivatization agent, both THC and CBD had the same retention time or coeluted. This means that both THC and CBD came out of the column at the same time, further indicating that CBD and THC would be indistinguishable in the test and report a larger amount of the drug than actually exists.
Certain hemp and marijuana testing protocols can actually create THC in the sample. Dr. Barry Logan of NMS Labs has stated in a cannabis/hemp testing webinar that in GCMS for the presence of cannabis, it was found that the GCMS test can cause THC to be created during testing under certain circumstances if the injection port exceeds 105 degrees Celsius. At this temperature, heat will convert tetrahydrocannibolic acid (THCA-A) – which is found in CBD/hemp products, is not psychoactive, and is not illegal – to THC. https://www.nmslabs.com/education/videos-webinars-podcasts/it-hemp-or-marijuana-deciphering-science-and-law
Hemp, Marijuana and Police Probable Cause to search
Hemp and marijuana look the same and smell the same, both raw, burned and un-burned. This similarity makes it impossible for police to use the appearance or odor of marijuana as a basis for articulable suspicion for probable cause to arrest, seize an item, or for a search warrant. For police to seize an item for testing, the police officer must have probable cause that the item being seized is evidence of a crime. The Georgia Hemp Farm Act makes possession of hemp in any form legal. Therefore, when a police officer encounters plant material that looks and smells like marijuana, he will no longer have probable cause to seize and test the suspected contraband. The probable cause to believe it is evidence of a crime will no longer exist since the suspected marijuana could be legal hemp. Police drug dogs cannot differentiate between hemp and marijuana because they are only trained to detect THC, which is present in both plants. Police also officers cannot distinguish between paraphernalia used to smoke marijuana and paraphernalia used to smoke hemp. See, North Carolina State Bureau of Investigation executive summary on Industrial Hemp/CBD issues.
CBD Oil and/or “Low THC Oil” in Georgia
OCGA 16-13-190 and 191 now legalizes less than 20 oz. of “low THC oil” for certain disease categories. Low THC oil is defined in OCGA 16-12-190 as “an oil that contains an amount of CBD and not more than 5% by weight of THC, tetrahydrocannabinolic acid (THCA), or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus cannabis.”
Cannabidiol (CBD) is a popular natural remedy used for many diseases and ailments. Cannabidiol is commonly referred to as CBD. CBD is one of the 104 chemical compounds known as cannabinoids found in the cannabis or marijuana plant, Cannabis sativa. THCA is found in raw and live cannabis. As marijuana plants are dried, THCA converts to THC. Heat accelerates this conversion in a process known as decarboxylation, which is what happens when you burn marijuana in a joint or a blunt. THC is the psychoactive ingredient of marijuana, which creates the “high,” but THC is typically out of your system in 4 hours after smoking. CBD is non-psychoactive so it will not make you high. In very basic terms, this means that any CBD oil must have less than 5% THC. The disease categories are listed in OCGA § 31-2A-18 (2017 as follows:
(a) As used in this Code section, the term:
(3) “Condition” means:
(A) Cancer, when such disease is diagnosed as end stage or the treatment produces related wasting illness or recalcitrant nausea and vomiting;
(B) Amyotrophic lateral sclerosis, when such disease is diagnosed as severe or end stage;
(C) Seizure disorders related to a diagnosis of epilepsy or trauma related head injuries;
(D) Multiple sclerosis, when such disease is diagnosed as severe or end stage;
(E) Crohn’s disease;
(F) Mitochondrial disease;
(G) Parkinson’s disease, when such disease is diagnosed as severe or end stage;
(H) Sickle cell disease, when such disease is diagnosed as severe or end stage;
(I) Tourette’s syndrome, when such syndrome is diagnosed as severe;
(J) Autism spectrum disorder, when such disorder is diagnosed for a patient who is at least 18 years of age, or severe autism, when diagnosed for a patient who is less than 18 years of age;
(K) Epidermolysis bullosa;
(L) Alzheimer’s disease, when such disease is diagnosed as severe or end stage;
(M) Acquired immune deficiency syndrome, when such syndrome is diagnosed as severe or end stage; or
(N) Peripheral neuropathy, when such symptoms are diagnosed as severe or end stage.
OCGA 31-2A-18 was amended and signed into law in May of 2018 to include intractable pain and post-traumatic stress disorder for patients who are at least 18 years old.
The basic steps to obtain a Georgia low THC oil card are as follows:
1) Patients and caregivers of patients who believe they may be eligible should consult with their physician about the possibility of obtaining a card allowing them to possess 20 fluid ounces of low THC oil within the state of Georgia.
2) If approved by the physician, the patient or patient’s caregivers’ information will be entered into DPH’s secure “Low THC Oil Registry” and a card(s) will be issued.
3) Patients and caregivers will be notified when the cards are ready for pickup (within 15 business days) from one of several public health offices geographically spread around the state.
“Low THC Oil Registry” cards cost $25. The Low THC oil cards will be valid for 2 years from the date issued. After two years, cardholders will need to consult with their physician about renewal eligibility and update patient information into the low THC oil registry.
Current Georgia Marijuana testing protocols:
The Georgia Bureau of Investigation Division of Forensic Sciences (GBI-DOFS) has sanctioned a three part-marijuana field testing protocol that test for marijuana. It includes a microscopic analysis, Duquenois Levine Tests, and Fast Blue B tests. The course includes training on courtroom testimony including presentation and mock trials, written and practical proficiency exams. Successful participants receive certificate that allows the law enforcement participant to perform Marijuana Field testing for 4 years from the certification date.
Microscopic Marijuana Examination:
Microscopic examination involves placing leafy portions of the marijuana sample under the microscope and looking for the morphological features of Cannabis. For a sample to be Cannabis, it must have cystolithic trichomes on the top of the leaf and covering trichomes located on the bottom of the leaf. Officers are trained to identify these features by calling them angel hairs and bear claws.
Duquenois-Levine Color Test
The Duquenois-Levine Color test requires 3 disposable test tubes, ether, chloroform, hydrochloric acid, Duquenois reagent (20 g vanillin an d12.5 mL of acetaldehyde dissolved in 100 ML of ethanol), a known Marijuana standard, and pipettes. The test is accomplished by preparing three tubes: one with the marijuana control, one with the suspected sample of marijuana using 1 gram of each sample, one with nothing as a negative control. Either is added to each tube to cover the sample, then it sits for 1 minute. The next step involves decanting into a test tube and heating to evaporation. Then, .01mL of the Duquenois solution and an equal amount of hydrochloric acid is added to the test tube (keeping note of the colors at this step). Approximately the same amount of chloroform is added to the tube. The liquids will then separate into layers. A positive reaction is indicated by both the Duquenois and chloroform layers turning a bluish purple/violet color. More blue indicates a stronger presence of cannabinol and more purple indicates a stronger presence of THC and cannabidiol. To ensure reliability of the test, the known marijuana must produce a positive result and the negative control must produce a negative result. Any other color is inconclusive, and the absence of a color change counts as a negative result.
Fast Blue B Color Test:
The Fast Blue B Color Test—also known as the KN reagent test—is the final test performed in the Georgia 3-part marijuana identification examination. Most kits are purchased from outside vendors and contain two ampoules containing Fast Blue B salts mixed in Tricholooethylene and aqueous sodium hydroxide solution in the other ampoule. The ampoules are contained in a plastic pack. A small amount of the suspected marijuana is placed in the plastic pack which is then resealed. The Fast Blue B salts ampoule is broken first and should not be allowed to sit for more than a few minutes. The second ampoule is broken and mixed. If there is a color change to an orange to red color, the test is considered positive. There are many compounds that cause false positives with a KN Reagent or Fast Blue B salt mixture.
Georgia Marijuana DUI:
Many people mistakenly believe that they can get a Marijuana DUI for simply having marijuana in their system. This used to be the case under O.C.G.A. 40-6-391(a)(6) before the Georgia Supreme Court ruled that a “per se” marijuana under subsection (a)(6) of the Georgia DUI statute was an Unconstitutional Denial of Equal Protection under the law. In Love v. State, 271 Ga. 398, 400(1), 517 S.E.2d 53 (1999), the Georgia Supreme Court held that because the effects of legally-used marijuana are indistinguishable from the effects of illegally-used marijuana, it could not be explained under an Equal Protection Constitutional Analysis. The Georgia Supreme Court reasoned that the difference was not directly related to the public safety purpose of the legislation as required. The Supreme Court held that the distinction between legal marijuana and illegal marijuana was arbitrarily drawn, and the statute, O.C.G.A. 40-6-391(a)(6) was an unconstitutional denial of equal protection.
Under current law, you can only receive a DUI for ingesting marijuana if the police can prove beyond a reasonable doubt that the marijuana made you “incapable of driving safely” or “less safe.” This means there must be at least an act of less safe driving resulting from marijuana usage or some evidence from which you could infer that marijuana usage impaired driving ability, such asintoxicated demeanor or poor performance on DUI field sobriety tests. The reality is that marijuana DUI cases are exceedingly difficult to prove. Even more so than “Less Safe” Alcohol DUI cases.
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