A recent memo from the Tennessee Bureau of Investigation’s crime lab to law enforcement and district attorney’s offices across the state is a game-changer for anyone charged with simple possession of marijuana in Tennessee. While marijuana in Tennessee is not yet legal, the memo makes clear that it is going to be extremely difficult, if not impossible, to continue to prosecute defendants for misdemeanor amounts of marijuana.
To fully understand the issues highlighted in the TBI memo, one must understand the changes that have occurred in the laws thanks to the legalization of hemp both by state law and by the 2018 Farm Bill. Hemp and marijuana are both classifications of cannabis, a genus of flowering plants in the Cannabacea family. The defining characteristic between hemp and marijuana is the chemical composition contained within each plant. Both hemp and marijuana can produce high amounts of CBD, the non-intoxicating cannabis compound; however, THC, the compound that is intoxicating and causes recreational users to feel high, is produced at very different levels.
Hemp, which is legal now in Tennessee, can contain no more than 0.3% THC by dry weight. Marijuana, which is presently illegal in Tennessee can contain up to 30% THC content. Until now, law enforcement would seize evidence suspected to be marijuana and that evidence would automatically be processed by the TBI Crime lab to determine what level of THC was contained within the plant-based substance. This is an extremely expensive and time-intensive process. Now, however, the TBI Crime lab has stated they will only be conducting lab testing on felony amounts of evidence and only when lab analysis is specially requested by the district attorney’s office.
What does this mean for someone criminally charged for simple possession of marijuana? Practically speaking, this means that law enforcement and the district attorney’s office may never have a scientific-based conclusive lab analysis of the evidence that they have seized. While there are some companies that have produced field tests that would satisfy a probable cause standard, those field tests would not be admissible at trial as evidence because they are not scientifically reliable. Without a scientific lab test, there is no conclusive way to distinguish between what is legal hemp versus what is illegal marijuana. Both hemp and marijuana look the same. They smell the same. Neither human nor dog can distinguish between the two without ingesting or smoking the substance. The evidence that police suspect to be marijuana could, in fact, be hemp.
As with every criminal case, the burden to prove each element of the criminal offense rests solely with the government. If the government is unable to prove beyond a reasonable doubt that the plant-based evidence they have seized is, in fact, cannabis containing greater than 0.3% THC, then the government cannot win their case. This means many people who are arrested for simple possession of marijuana charges should have their cases dismissed before trial and those that do have a trial in front of their peers should receive a verdict of not guilty.
Anyone familiar with the criminal justice system in Tennessee and across the United States knows, however, knows that most criminal matters are resolved through a system of plea bargaining between the prosecution and the criminally accused. People who are recreationally using marijuana in Tennessee need to understand, however, that there is absolutely no sense in them taking a plea deal to a drug charge if the government is unable to prove their case.
Further, anyone interacting with law enforcement needs to remember to keep their mouth closed and stop talking to the police. The government may not be able to scientifically prove beyond a reasonable doubt the THC level contained in evidence they have seized; but, all too often, criminal defendants open their mouths and start talking to law enforcement and will say some of the most asinine things that sink their own cases. But, even if a defendant has admitted to law enforcement that they have marijuana in their possession, that still does not change the burden placed on the government to prove the seized evidence is, in fact, marijuana and not hemp.
While the memo from the TBI does not make marijuana legal in Tennessee, it does create a path by which an attorney fighting zealously for their clients can get a client’s criminal charge for simple possession of marijuana dismissed. This is huge. Keep in mind that even a simple possession charge is still a Class A misdemeanor offense in Tennessee. That means the offense can carry a period of incarceration up to 11 months and 29 days. Even when this sentence is suspended, it oftentimes means defendants are placed on probation for a year and then are required to provide regular drug screens to a probation officer.
Even the “best” plea deal the state offers in a case can be the start of a downward spiral for someone if they are charged with a new criminal offense or fail a drug test on probation. A violation of probation oftentimes means the defendant goes to jail, without a bond, until the judge will hear their probation violation matter. For many defendants, this means they lose their job when they are not able to show up for work. And, the matter complicates other issues like child custody.
Bottom line: the landscape of prosecuting the criminally accused for simple possession of marijuana cases in Tennessee has changed. Tennesseans should know their rights, especially the right to keep their mouths shut. My office is fighting for the dismissal of all cases of marijuana possession where the government is unable to scientifically prove the plant-based evidence they have seized is illegal. If you or someone you know has a case you would like us to look at, simply give my office a call and we would be glad to provide you with a free consultation.
A copy of the memo from the TBI can also be found at www.kevinteetslaw.com
Kevin Teets is a Nashville based criminal defense attorney. Teets has worked as a prosecutor in Nashville and has appeared on News Channel 5’s Morning Line with Nick Berris to discuss the impact of this recently released memo from the Tennessee Bureau of Investigation. The Law Office of Kevin Teets may be reached at 615.933.8230 or by visiting their website at www.kevinteetslaw.com