HOUSTON – The ramifications of the state's new hemp law have led to hundreds of misdemeanor marijuana cases being dismissed and prompted several district attorneys' offices to temporarily stop prosecuting these cases.
"It was little, just nothing but a gram, just a gram," Donte Chazz Alec Williams said.
In April 2018, Williams was stopped for not having his headlights turned on while driving. The officer then found a small of amount of marijuana in the car.
"It was just, it was, it was there, you know. I couldn't lie about nothing. It was there, it was what it was," Williams said.
Williams was given a chance to enter Fort Bend County's diversion program for misdemeanor offenders but failed to meet the requirements. He said balancing work while attending drug classes and court dates proved difficult.
"Miss work to go to court, then I got to miss work to go to the class," Williams said.
When his next court date came up, Williams said he was certain he was headed to jail. However, Williams was stunned to hear from his attorney the case was dismissed.
"Blew my mind, though, honestly," Williams said. "That is really the quickest, least painful court date I ever been to."
Court documents filed in Williams' case read the charge was dismissed because "required lab testing unavailable at this time." The court records noted the DA could refile the case at a later date.
"I was very happy that case was dismissed. Probation would have been a struggle for Donte," attorney Vikram Vij said.
Vij said Williams' case was not the first one to see this outcome.
"I have multiple cases in Fort Bend County where we've gone to court and the cases are being dismissed as they come on the docket," Vij said.
As Channel 2 Investigates reported last June, the state's new hemp law is causing problems with the prosecution of marijuana cases. The issue is THC, the psychoactive compound that can produce a high. The compound is present in both marijuana and hemp. The new law makes hemp with a THC level 0.3% or lower legal. The problem is hemp and marijuana are very similar.
"They look the same. They smell the same. The test that is unavailable is the way to differentiate between hemp and marijuana," Vij said.
When the state passed the new law, crime labs were only equipped to test for the presence of THC, not concentration levels. While this proved to be good fortune for Williams, it has caused chaos in Taylor Deshotel's life.
"I feel like I'm living a nightmare," Deshotel said.
Deshotel was pulled over on a traffic stop in the town of Cibolo.
"He asked me if there was anything in the car I need to know about. I handed him the CBD pen with the CBD juice in it," Deshotel said.
Deshotel said while the box containing that product reads no THC, he found out from the company selling the product that is not quite accurate.
"Exactly what they said was 0.00025, which is about a crumb of THC," Deshotel said.
Unfortunately, the officer's quick test detected that crumb, and Deshotel was charged with possession of a controlled substance. Even though that amount of THC is under the legal limit, the Guadalupe County attorney is leaving the charge pending until tests can confirm as much.
"For me to be going through a controlled substance charge over something that is legal and they sell everywhere, they give receipts, and on top of that, it's one of the lower-end CBD ones, it's like, that doesn't make any sense," Deshotel said.
Until crime labs are up to speed, district attorneys are handling this issue differently. Harris and Fort Bend district attorneys' offices won't prosecute misdemeanor marijuana cases until testing is available.
Fort Bend officials said 607 misdemeanor cases have been dismissed. Waller County has dismissed 222 misdemeanor marijuana cases. Harris County officials said their number of dismissals is miniscule, since most misdemeanor offenders are placed in a diversion program.
Galveston and Brazoria counties told law enforcement in their areas to hold onto these cases until testing is ready. Montgomery County is using a private lab in Arlington and paying $90 a test. However, the head of the trial bureau, Kelly Blackburn, said tests are only done if the case goes to trial or if one is requested by the defense.
Head of the Houston Forensic Science Center Dr. Peter Stout said testing is about six months away.
"That uses existing equipment that uses, can work with our existing accreditation," Stout said. "That seems to be about the fastest route we're going to get to something."
Stout said the interim solution is for labs to be able to test for THC concentration levels above or below 1%. Stout said providing more specific results will require the purchase of new testing equipment and additional accreditation.
