George C. Creal Jr., P.C.,
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Marijuana has a very specific definition under Georgia law:  Georgia governor Brian Kemp signed into law on May 10, 2019 the Georgia Hemp Farming Act. The Georgia Hemp Farming Act or HB 213 changed the definition of Marijuana and THC, the psycho-active ingredient of Marijuana, to exclude Hemp. Hemp is federally defined as a delta-9-THC concentration of not more than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined 47 in 7 U.S.C. Section 5940, whichever is greater.  The GBI crime lab generally does not test marijuana currently but encourages Police to use a 3 part field test which only tests for the presence or absence of THC but can not tell you the percentage of THC. This is not enough to maintain a marijuana prosecution. 

As explained in Chambers v. State,  260 Ga.App. 48, 51, 579 S.E.2d 71 (2003) (although officers testified that the cigar contained marijuana, a GBI chemist did not test the substance and could not testify beyond a reasonable doubt that substance was marijuana): 

"The crimes relating to the possession or sale of marijuana are very specifically set forth in the Georgia Controlled Substances Act, OCGA § 16-13-20, et seq. In 2003, under OCGA § 16-13-21(16) marijuana was specifically defined as:

all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination.

In 2003, OCGA § 16-13-25(3)(P), which is specifically excluded from the definition of "marijuana" is defined as:

(3) Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers (whether optical, position, or geometrics), and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation: ... (P) Tetrahydrocannabinols which shall include, but are not limited to: (i) All synthetic or naturally produced samples containing more than 15 percent by weight of tetrahydrocannabinols; and (ii) All synthetic or naturally produced tetrahydrocannabinol samples which do not contain plant material exhibiting the external morphological features of the plant cannabis.

Given the exceedingly specific and scientific definition of this drug, the instances in which the State could exclude reasonable doubt without performing conclusive, scientific tests on the suspected marijuana would be very rare."  See also, Adkinson v. State, 236 Ga.App. 270, 271, 511 S.E.2d 527 (1999) (evidence insufficient where detectives testified that they believed the substance was marijuana and a GBI chemist stated that he thought the material was marijuana but could not testify to that beyond a reasonable doubt).  OCGA 16-13-21 and 16-13-25 were changed on May 10th, 2019  by the Georgia Hemp Farming Act and now state: 

OCGA § 16-13-21 (2019)(16) 'Marijuana' means all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin;, but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25; and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3.
OCGA § 16-13-25. (Schedule I) (P) (P) Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products as such terms are defined in Code Section 2-23-3.  

This new definition brings back to life the underlying rationale of the Chambers case due to the inclusion of THC percentage requirement. A law enforcement sweep on gas stations in Tennessee selling CBD oil gummy bears nick named "Operation Candy Crush " illustrates the current dilemma of Georgia prosecutors. In 2014, Tennessee removed hemp from the definition of marijuana and THC, just like Georgia did in the 2019 Hemp Farming Act, in the Tennessee criminal code. In a February 2018, a law enforcement operation named “Operation Candy Crush” in Rutherford County, Tennessee, closed approximately 25 retail stores and charged  the proprietors with felony drug charges for selling gummy candies made with CBD oil which includes some THC. The prosecution was later dismissed because the State Crime Lab could not distinguish the CBD oil came from marijuana or hemp. After Operation Candy Crush, state officials conceded that the burden of proof of determining if CBD oil is not legally hemp is on the state, not the accused. See National law Review, December 4, 2018. 

As South Dakota Governor Kristi Noem deftly explained the dilemma in a Sept. 9, 2019 opinion piece in the Wall Street Journal, 

“We have to be able to distinguish between hemp and marijuana,” a law-enforcement official in Ohio told a local news station after the Buckeye State legalized industrial hemp. “That is not possible for a human being to do. That has to be done through crime analysis.”

Yet many crime labs are also unable to distinguish between the two plants. They can detect the presence of tetrahydrocannabinol (THC), the psychoactive component of cannabis, but can’t determine how much is there. The technology to do so exists, but it costs hundreds of thousands of dollars. And a full crime analysis from a private lab can cost hundreds or even thousands of dollars per test, a price tag too steep for many local law-enforcement agencies. Even if they could afford it, the results often take weeks."

Not only are these test expensive but each sample has to be processed and treated for hours or days before the suspected marijuana can be tested to determine the percentage of THC present.  Two analytical techniques have been successfully used for the potency testing of cannabis: Gas chromatography (GC) and High Performance Liquid Chromatography (HPLC). There are advantages and disadvantages to each of these techniques. To insure uniform sample, lab technicians must follow guidelines for random sampling of plant section to include leaf, bud, and flower if available, dry the plant material for two hours at 35 °C with forced air ventilation, weigh approximately 100 mg of the dried plant material, and then grind the sample to a powder to pass through a 1 mm sieve. The resulting powder is combined with 30 ml organic solvent, sonicated or ultrasonically vibrated for 30 minutes, and filtered.  The liquid should then be evaporated to dryness at 200 °C for 20 minutes. Finally, the test substance should be reconstituted in organic solvent and analyzed by gas chromatography. See, Application Note, Cannabis Analysis: Potency Testing Identification and Quantification of THC and CBD by GC/FID and GC/MS, by Timothy D. Ruppel and Nathaniel Kuffel. 

The New York Times recently featured a story titled CBD or THC? Common Drug Test Can’t Tell the Difference, New York Times, by Amanda Chicago Lewis, October 15, 2019.  This story featured a 2012 study published in the Journal of Analytical Toxicology titled, Production of Identical Retention Times and Mass Spectra for Δ9-Tetrahydrocannabinol and Cannabidiol Following Derivatization with Trifluoracetic Anhydride with 1,1,1,3,3,3-Hexafluoroisopropanol* by Rebecca Andrews, Sue Paterson, Journal of Analytical Toxicology, Volume 36, Issue 1, January/February 2012, Pages 61–65. The 2012 study focused on gas-chromatography mass spectrometry commonly referred to as GC/MS where in sampled substances are heating and run through a column which differentiates the substances by their boiling point as evidence by the time it takes the substance to exit a column or tube. The study found that when using a derivatization agent trifluoracetice anhydride or TFAA both THC and CBD had the same retention time or coeluted meaning both THC and CBD came out of the column at the same time. This means that CBD and THC would be indistinguishable in the test and report a larger amount of the drug than actually exists. 

Hemp, Marijuana and Police Probable Cause to search

Hemp and marijuana look the same and have the same odor, both raw, burned and un-burned. This similarity makes it impossible for police to use the appearance or odor of marijuana as a basis for articuable suspicious for an investigative detention probable cause for arrest, seizure of the item, or probable cause for a search warrant. In order for police to seize an item to have it tested, the police officer must have probable cause that the item being seized is evidence of a crime. The Georgia Hemp Farm Act makes possession of hemp in any form legal. Therefore, when a police officer encounters plant material that looks and smells like marijuana, he will no longer have probable cause to seize and
test the suspected contraband because the probable cause to believe it is evidence of a crime will no longer exist as the suspected marijuana could be legal hemp. Police drug dogs cannot differentiate between hemp and marijuana because the drug dogs are trained to detect THC which is present in both plants. Police also officers cannot distinguish between paraphernalia used to smoke marijuana and paraphernalia used to smoke hemp. See, North Carolina State Bureau of Investigation executive summary on Industrial Hemp/CBD issues. 

CBD Oil and/or "Low THC Oil" in Georgia

OCGA 16-13-190 and 191 now legalizes less than 20 oz. of  "low THC oil" for certain disease categories. Low THC Oil is defined in OCGA 16-12-190 as meaning an oil that contains an amount of cannabidiol (CBD) and not more than 5 percent by weight of tetrahydrocannabinol (THC), tetrahydrocannabinolic acid (THCA), or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis.

Cannabidiol (CBD) which is a popular natural remedy used for many diseases and ailments.  Cannabidiol is commonly refered to as CBD. CBD is one of the 104 chemical compounds known as cannabinoids found in the cannabis or marijuana plant, Cannabis sativa.  THCA is found in raw and live cannabis. As  marijuana plants are dried,THCA converts to THC. Heat accelerates this conversion in a process known as decarboxylation. This is what happens when you burn marijuana in a joint or a blunt. THC is what makes you high when you smoke marijuana or is the psychoactive ingredient of marijuana but THC is typically out of your system in 4 hours after smoking. CBD is non-psychoactive so it will not make you high.  In very basic terms, this means that any CBD oil must less than 5% THC. The disease categories are listed in OCGA § 31-2A-18 (2017). The disease categories are listed as follows: 

(a) As used in this Code section, the term:
(3) "Condition" means:
(A) Cancer, when such disease is diagnosed as end stage or the treatment produces related wasting illness or recalcitrant nausea and vomiting;
(B) Amyotrophic lateral sclerosis, when such disease is diagnosed as severe or end stage;
(C) Seizure disorders related to a diagnosis of epilepsy or trauma related head injuries;
(D) Multiple sclerosis, when such disease is diagnosed as severe or end stage;
(E) Crohn's disease;
(F) Mitochondrial disease;
(G) Parkinson's disease, when such disease is diagnosed as severe or end stage;
(H) Sickle cell disease, when such disease is diagnosed as severe or end stage;
(I) Tourette's syndrome, when such syndrome is diagnosed as severe;
(J) Autism spectrum disorder, when such disorder is diagnosed for a patient who is at least 18 years of age, or severe autism, when diagnosed for a patient who is less than 18 years of age;
(K) Epidermolysis bullosa;
(L) Alzheimer's disease, when such disease is diagnosed as severe or end stage;
(M) Acquired immune deficiency syndrome, when such syndrome is diagnosed as severe or end stage; or
(N) Peripheral neuropathy, when such symptoms are diagnosed as severe or end stage.

OCGA 31-2A-18 was amended and signed into law in may of 2018 to include intractable pain and post-traumatic stress disorder resulting from direct exposure to or witnessing of a trauma for a patient who is at least 18 years of age. 

The basic steps to obtain a Georgia low THC oil card are The basic steps to obtaining a card are as follows:

1) Patients and caregivers of patients who believe they may be eligible should consult with their physician about the possibility of obtaining a card allowing them to possess 20 fluid ounces of low THC oil within the state of Georgia.
2) If approved by the physician, the patient or patient’s caregivers’ information will be entered into DPH’s secure “Low THC Oil Registry” and a card(s) will be issued.
3) Patients and caregivers will be notified when the cards are ready for pickup (within 15 business days) from one of several public health offices geographically spread around the state.

“Low THC Oil Registry” cards cost $25. The Low THC oil cards will be valid for two years from the date issued. After two years, cardholders will need to consult with their physician about renewal eligibility and update patient information into the low THC oil registry.

Current Georgia Marijuana testing protocols: 

The Georgia Bureau of Investigation Division of Forensic Sciences (GBI-DOFS) has sanctioned a three part-marijuana field testing protocol that test for marijuana. It includes a microscopic analysis, Duquenois Levine Tests, and Fast Blue B tests. The course includes training on courtroom testimony including presentation and mock trials, written and practical proficiency exams. Successful participants receive certificate that allows the law enforcement participant to perform Marijuana Field testing for 4 years from the certification date. 

Microscopic Marijuana Examination: 

Microscopic examination involves placing leafy portions of the marijuana sample under the microscope and looking for the morphological features of Cannabis. In order for a sample to be Cannabis it must have cystolithic trichomes on the top of the leaf and covering trichomes located on the bottom of the leaf. Officers are trained to identify these features by calling them angel hairs and bear claws. 

Duquenois-Levine Color Test

The Duquenois-Levine Color test requires disposable 3 test tubes, ether, chloroform, hydrochloric acid, Duquenois reagent (20 g vanillin an d12.5 mL of acetaldehyde dissolved in 100 ML of ethanol), a known Marijuana standard, and pipettes. The test is accomplished by preparing three tubes one with the marijuana control and one with the suspected sample of marijuana using 1 gram of each sample and one tube with nothing as a negative control. Enough ether is added to each tube to cover the sample. Let the sample sit for one minute. Decant into a test tube and heat to evaporation. Next add 0.1 mL of the Duquenois solution and add an equal amount of hydrochloric acid to the test tube and note the colors. Add approximately the same amount of chloroform in the tube. The liquids will separate into separate layers. A positive reaction is bluish purple to violet color change in both the Duquenois and chloroform layers. More blue indicates a strong presence of cannabinol and more purple indicates more THC and cannabidiol.  The known Marijuana must give a positive result and the negative control should give a negative result to indicate a reliable result. Any other color is inconclusive and the absence of a color change is a negative result. 

Fast Blue B Color Test: 
The Fast Blue B Color Test also known as the KN reagent test is the final test performed in the Georgia there part Marijuana identification examination. Most kits are purchased from outside vendors and contain two ampoules containing Fast Blue B salts mixed in Tricholooethylene and aqueous sodium hydroxide solution in the other ampoule. The ampoules are contained in a plastic pack. A small amount of the suspected marijuana is placed in the plastic pack which is then resealed. The Fast Blue B salts ampoule is broken first and should not be allowed to sit for more than a few minutes. The second ampoule is broken and mix. I f there is a color change to an orange to red color the test is considered positive. There are many compounds that cause false positives with a KN Reagent or Fast Blue B salt mixture.   

Georgia Marijuana DUI:

Many people mistakenly believe that they can get a Marijuana DUI for simply having marijuana in their system. This used to be the case under O.C.G.A. 40-6-391(a)(6) before the Georgia Supreme Court ruled that a "per se" Marijuana under subsection (a)(6) of the Georgia DUI statute was an Unconstitutional Denial of Equal Protection under the law. In Love v. State, 271 Ga. 398, 400(1), 517 S.E.2d 53 (1999), The Georgia Supreme Court held that the fact that the effects of legally-used marijuana are indistinguishable from the effects of illegally-used marijuana could not be explained under an Equal Protection Constitutional Analysis. The Georgia Supreme Court reasoned that the difference was not directly related to the public safety purpose of the legislation as required. The Supreme Court held that the distinction between legal marijuana and illegal marijuana was arbitrarily drawn, and the statute, O.C.G.A. 40-6-391(a)(6) was an unconstitutional denial of equal protection.

Under current law, you can only receive a DUI for ingesting marijuana if the police can prove beyond a reasonable doubt that the marijuana made you "incapable of driving safely" or "less safe." This means there must be at least an act of less safe driving resulting from marijuana usage or some evidence from which you could infer that marijuana usage impaired driving ability -  like an intoxicated demeanor or poor performance on DUI field sobriety tests. The reality is that marijuana DUI cases are exceedingly difficult to prove. Even more so than "Less Safe" Alcohol DUI cases.  

Hire a Georgia Lawyer That Can Deliver the Results You Deserve! 

All you need is a reasonable doubt to beat a Marijuana Possession or a Marijuana DUI conviction, and our firm has an established track record of delivering!

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is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Atlanta DUI lawyers with both an AV Preeminent rating from and a 10.0/10.0 Superb rating on He has over 100 "not guilty" verdicts under his belt and has forged indispensable relationships with police, judges and prosecutors all over the State of Georgia in order to benefit his clients' defense.
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No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI arrests occurring in the State of Georgia. Individuals with DUI from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2014 George C. Creal, Jr. P.C.
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