The Legalization of Hemp is Changing How Marijuana Charges are Prosecuted in South Carolina

At the David W. Martin Law Group, our drug crimes attorneys in Rock Hill are carefully watching — and protecting our clients from — how our York County solicitor’s office is prosecuting marijuana charges.

According to a Major with one South Carolina Sheriff’s Office, it is exceedingly difficult, if not impossible, to distinguish marijuana from hemp, either by sight or smell, which is leading to many of our residents being charged with a crime when the product found in their possession is fully legal in our state.

The product must be tested by an authorized laboratory to determine whether it is hemp or marijuana before the charges can proceed. And in some counties, there is a continuous backlog that places our citizens in criminal trouble until they can be cleared through testing.

What is the Difference Between Hemp & Marijuana in South Carolina?

Hemp is a form of cannabis that can be used to make countless products, including plastics and textiles, as well as cannabinoid products from its CBD, which is extracted for use in oils and creams for its medical benefits.

Marijuana is the same type of plant, but it contains THC, which is the chemical that produces its psychoactive effects.

Hemp, by South Carolina and Federal laws, cannot exceed a .3% concentration of THC during laboratory testing and is legal to grow and sell throughout the state within a regulated program.

Marijuana, except in very minimal instances where derivatives are used for patients with seizure disorders, is illegal in any form in South Carolina.

Within the past decade, the number of hemp farmers in South Carolina has expanded five-fold, growing from the initially approved 20 farms to more than 100 today.

How is the Hemp Farming Growth Hindering Marijuana Prosecution in South Carolina?

Each farm in the state must test its hemp and ensure it does not measure more than .3% THC, which would then categorize it as marijuana.

Since it is impossible to distinguish marijuana from hemp by sight or smell, many people are being arrested and charged based on the assumption that the product is marijuana, until they can prove otherwise.

The laboratory analysis can be time consuming, which is creating a significant backlog that is creating what South Carolina’s State Law Enforcement Division officials are calling, “a nightmare situation.”

That nightmare is also becoming a reality for those with pending charges.

At one time, the testing process could take up to two weeks. Now, it takes approximately one year when law enforcement officials do not have the ability to test the product in-house and must send samples into SLED’s state crime lab.

In the meantime, marijuana charges could be pending for more than a year, which is unfair to our clients and others who are facing similar charges.

Are Changes Coming to Our South Carolina Marijuana Laws?

In Florida, law enforcement officials have reevaluated how officers “sniff and search” after a long-standing practice that cited the smell of marijuana as probable cause to search a vehicle or person without a warrant.

The Florida State Attorney’s office now says the tool is no longer an effective approach to determine whether seized cannabis is marijuana or hemp, stating, “The odor of marijuana — by itself — is no longer probable cause for a search,”

Florida’s law enforcement officials have been notified by the same office that an authorized lab must fully test the seized product and indicate that it is, indeed, marijuana and not hemp, or they will not be pursuing those cases for prosecution.

While that law enforcement approach has not transcended our South Carolina borders, we are closely monitoring and instituting the best legal defense strategies available for our clients who are awaiting marijuana charges.

If you have been arrested on marijuana charges in South Carolina, contact our Fort Mill criminal defense attorney at the David W. Martin Law Group today by calling (803) 548-2468 to review your case with our experienced lawyers who are here to help you pursue positive results.




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