The decision to back away from pursuing criminal charges against people with small amounts of pot comes after state lawmakers last year legalized hemp in a way that threw marijuana prosecution into chaos.
The Austin City Council approved a resolution Thursday that will largely end arrests and fines for low-level marijuana possession. This comes after Texas’ legalization of hemp last June threw marijuana prosecution into chaos since the plants look and smell identical.
The resolution directing Austin police not to spend city resources on newly necessary lab tests to distinguish marijuana from now-legal hemp passed unanimously with nine votes. Council member Jimmy Flannigan and Mayor Steve Adler were absent. Debate on the measure lasted just under an hour and a half. Of about 20 people who spoke on the resolution, only Austin Police Association President Ken Casaday was against it.
The council’s resolution states that it stems directly from Texas’ new law legalizing hemp. Last summer, following a federal hemp bill, state lawmakers approved a measure to create an agricultural industry for the crop in Texas. But the law also complicated marijuana prosecutions by narrowing the legal definition of the drug from cannabis to cannabis that contains more than 0.3% THC, the psychoactive ingredient in the plant.
Joint Effort: #ATXCouncil takes steps to eliminate the use of arrest or other enforcement action for low-level cannabis-related possession offenses + ensure City resources are focused on citizens’ public safety priorities. View the draft resolution: https://t.co/qNJ6L2ZPjJ. pic.twitter.com/rdwiLjx0w8
— City of Austin (@austintexasgov) January 23, 2020
All of a sudden, some district attorneys were dropping hundreds of low-level pot possession cases and not accepting new ones, arguing they couldn’t tell without lab testing if something was marijuana anymore. New misdemeanor marijuana cases filed by Texas prosecutors have dropped by more than half. And numerous Texas prosecutors, including those in Austin’s Travis County, require police to submit lab reports on a substance’s THC concentration before they will pursue misdemeanor marijuana charges. They argue circumstantial evidence like smell can no longer be used to authoritatively say something is marijuana.
Part of what prompted the Austin resolution — which prohibits spending city funds on such testing except in felony cases — is that public state labs are still working on establishing a way to test for that THC concentration. Right now they can only tell if something is cannabis. For some counties and cities, that has meant putting more money into shipping seized cannabis to private labs that can tell if it’s hemp or marijuana.
Even in places where police don’t have or aren’t spending funds on such testing and new cases aren’t being accepted by prosecutors, people are still being cited or arrested. They are sometimes taken to jail but then released with no charges being pursued. Austin police said this month that they still arrest or cite people who are suspected of possessing marijuana.
This resolution changes that, directing the city to get as close as possible to eliminating enforcement action for low-level cannabis possession.
The measure prohibits spending city funds on testing in low-level possession cases, and it directs police not to arrest or cite people in such cases — unless there is a safety concern — if they know the district attorney will automatically reject the charges or testing won’t be approved. It clarifies that lab testing can be used for suspected felonies or when the cannabis is not for personal use, like trafficking cases. A revised version also specifies that the measure will not affect toxicology testing.
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