Gwinnett Solicitor Says He Will No Longer Prosecute Misdemeanor Marijuana Cases  

On Wednesday, Gwinnett County Solicitor-General Brian Whiteside dismissed over 100 cases of misdemeanor marijuana and worked on dismissing more today. This was sparked by Georgia's new Hemp Farming Act, which allows a handful of farmers to grow hemp crops. As a Gwinnett County DUI Attorney, I regularly handle cases involving possession of marijuana. The effects of this new law are widespread and can especially be seen here in Gwinnett County.  

The bill's passage in May led the Gwinnett County Police Department to start writing tickets for misdemeanor marijuana violations instead of making arrests. Gwinnett County District Attorney Danny Porter revealed that while he has not made any decisions on how he will proceed with felony marijuana cases. Porter believes that the law contains a critical omission that raises significant questions about how district attorneys across Georgia can continue to prosecute these cases. The new law does not contain language explicitly addressing hemp possession – which Porter and Whiteside contend make it legal by default.

Both Porter and Whiteside say this omission raises questions about a police officers' ability to justify marijuana-related arrests. With hemp possession legal, probable cause for arrest based on someone having a "leafy green substance" on their person or smelling like marijuana may no longer be sufficient.

"Hemp" is defined as any part of the cannabis Sativa L. plant and its derivatives with no more than a THC concentration of 0.3%. This difference in THC levels is what makes hemp different than standard marijuana, and has created another obstacle to arresting for misdemeanor marijuana possession – the testing readily available to law enforcement can determine whether there is THC is a substance but cannot determine how much. Without the ability to see precisely how much THC is in a substance, it is impossible to differentiate the two.

A spokesman for the Gwinnett County Police Department said the agency is going to continue to research the issue. Porter, Whiteside, and local police chiefs are expected to have a meeting Friday morning to determine how they will move forward.

Practice Note

As a Gwinnett County DUI Lawyer, I must remind you that even though new hemp law has made a misdemeanor possession charge increasingly difficult to prosecute, marijuana is still illegal. One way you can still be prosecuted for a marijuana-related offense is if you are caught in violation of Georgia's Drugged Driving law. OCGA § 40-6-391(a) explains that a person is guilty of a DUI if he or she is: (1) driving while under the influence of any drug to the extent that it is less safe for the person to drive; OR (2) if a person operates a motor vehicle with any amount of marijuana or a controlled substance present in the person's body. This can be tested through blood or urine, so there is no way to confuse its appearance with Hemp. 

If you have been charged with possession of Marijuana or Drug DUI in Gwinnett County, contact the Law Offices of Richard S. Lawson today.