The Impact of Hemp Legalization on Criminal Law: Navigating New Challenges

The legalization of hemp products containing less than 0.3% delta-9-tetrahydrocannabinol (THC) under Alabama law has introduced significant changes to the criminal justice system. While this development aims to foster industrial and medicinal use of hemp, it has also created challenges for criminal law enforcement, prosecution, and defense. The line between legal hemp and illegal marijuana is now both scientifically and legally intricate, impacting arrests, charges, and evidence standards in criminal cases.

Challenges in Prosecution and Evidence

Under Alabama law, hemp is defined as Cannabis sativa L. containing no more than 0.3% delta-9 THC by dry weight, while marijuana is classified as the same plant exceeding this threshold. The difficulty arises because both substances share physical, chemical, and sensory similarities. Prosecutors must now provide scientific evidence that cannabis material in question contains THC above the legal limit to secure convictions for marijuana-related offenses.

Historically, forensic testing in Alabama focused on qualitative analysis—confirming the presence of THC but not its concentration. This approach sufficed when all cannabis products were illegal. However, with hemp's legalization, such tests are inadequate. The Alabama Department of Forensic Sciences (ADFS) currently lacks the equipment and accreditation to perform the quantitative THC analysis necessary to distinguish between hemp and marijuana. As a result, criminal cases involving cannabis are increasingly vulnerable to dismissal or acquittal due to insufficient evidence.

For example, possession cases hinging on cannabis material's THC content may fail if law enforcement cannot definitively prove the substance exceeds the 0.3% limit. This evidentiary gap places significant pressure on prosecutors to obtain lab results capable of quantitative analysis, which may not be readily available.

Impact on Law Enforcement Practices

The overlap between hemp and marijuana complicates probable cause determinations during investigations. Visual inspections, field tests, and police dogs trained to detect cannabis are no longer reliable indicators of illegal activity. These tools cannot distinguish between legal hemp and marijuana, leading to wrongful arrests and seizures. For instance:

• Field tests may yield false positives for marijuana when used on legal hemp products, including smokable hemp or CBD oils.

• Police dogs trained to alert to cannabis cannot differentiate hemp from marijuana, undermining their reliability in establishing probable cause.

As a result, law enforcement officers must now rely on more comprehensive evidence or laboratory analyses, which could delay or derail investigations. The practical limitations in determining legality at the scene place individuals at risk of unjustified arrests, seizures, or charges, with significant implications for their criminal records.

Defenses and Implications for Accused Individuals

For criminal defense attorneys, the legalization of hemp presents new avenues to challenge marijuana-related charges. Key strategies include:

1. Challenging Evidence: Defense attorneys can argue that the state has failed to meet its burden of proving the cannabis material exceeds the legal THC threshold. Without quantitative lab results, evidence is insufficient to support a conviction.

2. Disputing Probable Cause: Arrests based on smell, appearance, or non-quantitative tests can be challenged as unlawful. Courts are increasingly recognizing that such indicators do not reliably distinguish hemp from marijuana.

3. Highlighting Enforcement Errors: Cases of wrongful seizure or detention due to field test inaccuracies or misinterpretation of legal products underscore flaws in enforcement. These errors can form the basis for dismissals or favorable plea negotiations.

Broader Implications for Criminal Justice

The legalization of hemp underscores the evolving complexity of cannabis laws and their interplay with criminal law. It has prompted a reevaluation of enforcement practices, evidentiary standards, and prosecutorial approaches. While the shift benefits individuals lawfully possessing hemp products, it also exposes systemic challenges that can lead to inconsistent or unjust outcomes.

Ultimately, the legal system must adapt to these changes through updated training for law enforcement, enhanced forensic capabilities, and judicial recognition of the nuances surrounding hemp and marijuana. For now, defense attorneys and prosecutors alike must navigate a landscape where the burden of proof regarding THC content is central to marijuana-related cases.