Last Saturday, the Atlanta Police Department arrested 40 people as part of “Operation No Smoke,” raiding what police described as a “marijuana pop-up event” at a warehouse near Downtown Atlanta. Officers seized more than 1,200 pounds of suspected marijuana, 391 pounds of THC edibles, 29 pounds of mushrooms, and 15 guns. Investigators continue to process evidence seized from the event, which police say involved vendors from 11 states. 

The State will likely bring felony charges for marijuana trafficking against many of these people, which carry high mandatory prison terms under Georgia law. The State could also be aggressive and try the individual participants as part of a RICO enterprise. Other potential charges include unlawful firearm possession and distributing illegal mushrooms.

While this might have looked like an open-and-shut case ten years ago, Georgia’s legalization of certain forms of cannabis and cannabis products as “hemp” will now provide these defendants with important defenses and tools for attacking the State’s case.

To convict a defendant charged with marijuana offenses, it is not enough for the State to prove that the defendant possessed or dealt cannabis that was over the legal THC limit in Georgia, which distinguishes legal hemp from illegal marijuana. The State must prove beyond a reasonable doubt that the defendant knew he possessed or was dealing with an illegal controlled substance, like marijuana, rather than hemp.

That is much harder to do now that there are legal hemp products in Georgia that look like, smell like, and can even get you “high” like, illegal marijuana. And the only way a person can really know the THC concentration of that product, and thus its legality, is through lab tests. Of course, most hemp customers and retailers don’t have their own labs, and they rely on the representations of manufacturers and vendors who do.

In addition to cannabis products that are under the legal THC limit, which is 0.3% Delta-9-THC in Georgia, Georgia law also allows hemp products that contain other kinds of cannabinoids, including intoxicating cannabinoids like Delta-8-THC, THCP, and HHC.  

Many of these legal hemp products are packaged in ways that make them appear indistinguishable from illegal marijuana products to consumers, retailers, vendors, and police on the scene. On top of that, many field tests used by the police to test marijuana are not calibrated to differentiate between Delta-9-THC and other forms of hemp-derived THC. This creates another obstacle for the State in marijuana cases.

At this point, APD has not yet stated whether any of the products they seized have tested above the legal limit, and what testing methods were used, or whether they just seized everything that looked like marijuana or illegal drugs. It is also not clear whether any of the arrested vendors held wholesale or retail hemp licenses, which are regulated by the Department of Agriculture and allow the sale and possession of certain cannabis products.

These issues will matter if the State intends to prosecute these individuals for felony marijuana and related offenses, such as RICO or possessing a firearm during a drug trafficking crime. To get a conviction on any charge where the underlying offense involves marijuana, the State will have to prove that a defendant knowingly and intentionally chose to deal illegal marijuana despite laws making similar cannabis products legal.

Depending on what the evidence ultimately shows, some of the defendants may be able to use Georgia’s hemp laws to argue that their charges should be based on civil violations of Georgia’s hemp laws and regulations and not treated as a felony offense.

Georgia law makes certain failures to comply with state hemp regulations misdemeanors or subject to civil penalties, including selling or manufacturing consumable hemp products without the necessary license and selling products that are over the legal THC limit.

In some cases, defendants may argue that where Georgia’s hemp laws and criminal marijuana laws overlap or create genuine ambiguity, then the “rule of lenity” applies, meaning that law with the less severe penalty applies. This is a well-established legal doctrine based on the principle that laws imposing punishment must be clear and provide fair notice.

The defense gets stronger still if the seized cannabis products were pre-rolls or otherwise resembled processed hemp products that are legal to sell. Even if the seized cannabis products were in a non-compliant form, however, such as loose flower, knowingly selling non-compliant hemp is different than knowingly selling marijuana.

Like cannabis, some varieties of intoxicating mushrooms are legal. Amanita mushrooms, for example, are a widely sold mushroom product with psychoactive properties and are often mistaken for illegal psilocybin mushrooms. Vendors also market these mushrooms in ways that make them look indistinguishable from psilocybin products, emphasizing the psychedelic effects. 

APD has not stated whether the mushrooms seized in fact contained psilocybin, or what testing the products have undergone. Even if the State can prove the mushrooms contained psilocybin, however, the State will still have to prove that the defendant knowingly sold and/or possessed illegal mushrooms, not amanita mushrooms.

If you’ve been arrested or charged with a crime or other violation of law based on the sale or possession of cannabis, it is critical to have an experienced criminal defense lawyer who understands the laws and regulations that determine which cannabis products are legal as hemp versus marijuana.

The Church Law Firm has defended dozens of people and businesses facing cannabis-related charges, including based on the sale illegal marijuana and non-compliant hemp. Our team understands the science and the law governing THC and hemp products and have secured favorable outcomes in THC product disputes and returns of seized goods. 

If you are facing allegations of marijuana or drug trafficking, contact our firm today.