Last week, our firm obtained a dismissal of felony marijuana and gambling charges that were brought against the owner of a smoke shop, his wife, and his employees in Lee County, Georgia. This case is just the latest in a long line of cases in which law enforcement officials have falsely charged a hemp business with selling illegal marijuana instead of legal hemp products. As in those cases, we used our unique expertise in marijuana cases to win.
In an unusual twist, this case also involved allegations of illegal commercial gambling through the smoke shop’s operation of several coin-operated amusement machines (COAMs). The police alleged that our client’s store was engaging in illegal gambling by giving cash awards to COAM winners rather than in-store gift cards, in violation of Georgia’s COAM regulations.
Based on our expertise in Georgia’s hemp laws and our firm’s aggressive approach to defending our clients, we were able to convince the prosecutor to dismiss all of these charges against our clients and agree to seal their arrest records. We did so by providing lab tests from our client’s suppliers, identifying weaknesses in the State’s lab results, and obtaining impeachment evidence that would have discredited the lead investigator in the case and other State’s witnesses.
Police raided our client’s Smoke Shop based on unreliable test results of hemp products they purchased “undercover.”
Earlier this year, police raided our client’s smoke shop, seized cash and thousands of dollars of hemp inventory, and arrested our client, his wife, and several of his employees. The raid came after Lee County officers conducted a year-long investigation where “undercover” officers bought products from the store and then tested them. The officer would also play the COAM machines at our client’s store and request his winnings in cash, which our client’s employees allegedly gave him.
The “undercover” purchases in this case are common in smoke shop cases, which are built on test results of products obtained from the smoke shops. Of course, “undercover” investigations are totally unnecessary in these cases since smoke shops are allowed to openly sell legal, intoxicating cannabis products to police officers and members of the public alike.
The State ultimately filed an Accusation alleging multiple felony counts of Sale of Marijuana under O.C.G.A. § 16-13-30(j)(1) and Violation of Gambling Prohibition under O.C.G.A. § 16-12-35. The marijuana charges were based on allegations that certain products purchased at our client’s store tested over the legal limit of THC and that our client knew they would when they sold them.
In 2019, the Georgia legislature legalized specifically excluded hemp and hemp products from the definition of marijuana, setting the legal limit at 0.3% total delta-9-THC concentration. This legalized a broad variety of cannabis products that look and smell like marijuana. Hemp and marijuana also contain the same “cannabinoids,” like CBD and THC, but in different quantities.
The problem with the State’s case was that their testing methods, especially the field tests they used, are not capable of distinguishing marijuana from certain hemp products, namely the THCA flower that the officers purchased in this case. The State also did not make an effort to preserve the seized cannabis for reliable testing, allowing compliant hemp to “decarboxylate” and degrade into a non-compliant product.
As for the State’s gambling-related charges, the State relied on a misreading of the law. The State initially tried charging our client with illegal commercial gambling. Providing cash payouts for COAM winners is a violation of Georgia’s COAM laws, however, not illegal commercial gambling. After we pushed for a hearing on the charges, the State reduced the charge to a misdemeanor to avoid a hearing before eventually dismissing them altogether.
All charges were dismissed after our firm filed motions challenging the State’s test results, the constitutionality of the search and the charges, and the State’s failure to distinguish between marijuana and hemp.
Fortunately, our client turned to us after the raid of his store and the arrest of his employees and his family. We prepared an aggressive defense distinguishing illegal marijuana from the hemp products that they sold, which were backed up by lab results from his vendors showing that the seized products were actually “hemp” under Georgia law.
We challenged the State’s search of our client’s store as unconstitutional under the Fourth Amendment, as the officer had not disclosed to the judge who issued the warrant that the hemp products in question were indistinguishable from marijuana without reliable testing.
We challenged the language in the State’s charging papers as legally inadequate for not distinguishing between hemp and marijuana as cannabis. And we challenged Georgia’s marijuana laws as “unconstitutionally vague” as applied to our client’s products, given the State’s rapidly changing hemp laws. When the State refused to produce evidence that the defense was entitled to, we challenged that too by filing a motion to compel evidence.
The final nail in the coffin in this case was when we provided the District Attorney’s Office with copies of independently sourced lab results from accredited labs and invoices from legitimate vendors, all showing THC concentrations below the legal limit. Rather than fight us in court, the State dismissed all of the charges and agreed to seal our client’s arrest record.
Call our firm if you have been charged with felony marijuana offenses.
We were proud to obtain the best possible outcome for our client, his employees, and his business. The result in this case reflects the aggressive playbook we have fine-tuned through winning many similar cases involving cannabis and our aggressive representation of smoke shops that have been wrongfully accused of selling marijuana.
If your hemp or COAM business has been targeted by law enforcement, contact us. Our firm has extensive experience in these kinds of cases and will fight for you.
