Brian Whiteside

Brian Whiteside

Solicitor General Brian Whiteside has pledged to not prosecute any misdemeanor marijuana cases — and he said uncertainty created by Georgia’s new hemp farming law is to blame.

Whiteside said a memo to the county’s judges, as well as District Attorney Danny Porter, Sheriff Butch Conway and Gwinnett commissioners this week to inform them of his decision not to prosecute the cases.

The reason? Now that the new Georgia Hemp Farming Act is in place, it’s hard to determine whether the chemical composition of a suspicious item makes it legal or illegal.

“We met with the (county and municipal police) chiefs (Friday) and, basically, I told them I’m not prosecuting people for marijuana because it can’t be proven,” Whiteside said. “It’s up to each individual police department as to what they do, but we just can’t prove what is marijuana and what is hemp.”

At the heart of the issue facing Gwinnett’s criminal justice system is how to determine something’s THC concentration level. The level of THC, or tetrahydrocannabinol, present is the key factor distinguishing hemp from marijuana.

The Georgia Department of Agriculture lists the threshold THC concentration level separating hemp from marijuana is 0.3%. Anything less than that is classified as hemp.

Whiteside said Gwinnett officials are facing a testing issue: If they find something that could be hemp or marijuana, they don’t have the tools to tell what the THC level is.

“There is no machine that we have certified in Georgia at this point for plants — that I know of — that is up and certified and can differentiate cannabis from hemp,” Whiteside said.

“And if it could, could it be prosecuted in a timely manner because we deal with 3,000 cases to 4,000 cases a year, plus you have all of the other counties. You’re talking about 30,000 cases. People will be waiting two years on a marijuana cigarette.”

Porter, who is Gwinnett’s other main prosecutor, could not be reached for comment Friday.

Although the production and sale of hemp is now legal in Georgia, the state does have some limitations on who is allowed to grow it. Only growers licensed by the Department of Agriculture will be allowed to grow and produce it, however.

The Georgia Department of Agriculture is still developing regulations for hemp production, according to its website, and the agency won’t issue hemp production licenses until those rules are established.

Meanwhile, Whiteside’s office is not the only prosecuting office in the southeast that is putting the brakes on prosecuting marijuana cases right now because of issues related to a new hemp law.

On Friday, CBSMiami reported that the Miami-Dade State Attorney’s Office will also stop prosecuting minor marijuana cases for the time being. Like Georgia, Florida also has a new hemp law on the books and just as Georgia’s law has raised issues in Gwinnett, Florida’s law is creating some challenges for prosecutors in the Miami area.

Like Gwinnett, officials in the Miami-Dade area are having trouble testing THC levels.

Whiteside said he believes the solution in Georgia is to do away with misdemeanor marijuana violations and allow small scale cannabis sales — albeit with a tax to generate funds to support schools or law enforcement in the state.

“I don’t think we should prosecute misdemeanor marijuana,” Whiteside said. “I think we should tax it and use the revenue for pre-K, two-year colleges, four-year colleges and law enforcement pensions.”

I'm a Crawford Long baby who grew up in Marietta and eventually wandered to the University of Southern Mississippi for college. Earned a BA in journalism (double minor in political science and history). Previously worked in Florida and Clayton County.

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