Oops?! Ohio Bill Legalizing Hemp Has Effectively Decriminalized Marijuana, At Least For Now
August 12, 2019

On July 30, 2019, Governor Mike DeWine signed a bill legalizing hemp and hemp-derived CBD in Ohio. Like many other jurisdictions, the Ohio measure defines hemp to be cannabis with less than 0.3% THC, which is the key compound of the cannabis plant that can cause a psychoactive effect in certain concentrations. As a practical matter, however, it appears that the hemp law may have actually decriminalized marijuana (cannabis with 0.3% THC or more) for at least the next few months as well.

The issue arises because Ohio crime labs cannot currently measure the quantity or percentage of THC in a cannabis sample; they can only determine if THC is present at all. In other words, law enforcement in Ohio cannot distinguish legal hemp from illegal marijuana. “You legalized marijuana in Ohio for a time being,” said Jason Pappas, the vice president of the Ohio Fraternal Order of Police. According to Pappas, “[u]ntil these testing requirements are fixed and until we get some additional training and resources available to us, it’s going to be very difficult to go after any marijuana cases in Ohio.”

Other key players in law enforcement seem to agree. “This bill de facto legalizes marijuana in Ohio…at least for a time,” said Louis Tobin, the Executive Director of the Ohio Prosecuting Attorneys Association. Further, Ohio Attorney General Dave Yost sent a letter to prosecutors advising that it might be “several months” before the Ohio Bureau of Criminal Investigation (“BCI”) is able to test for THC levels. In the interim, the BCI has recommended that prosecutors in the state not indict “any cannabis-related items.” The Columbus City Attorney’s Office has taken that recommendation a step further and announced that it will no longer prosecute misdemeanor marijuana cases and is dropping any pending cases. “We cannot prove those beyond a reasonable doubt because we cannot make the distinction whether it is hemp or whether it is marijuana,” Columbus City Attorney Zach Klein said.

We will continue to monitor developments in Ohio and report on them through our blog.

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