Industrial Hemp gray area for law enforcement

Industrial Hemp gray area for law enforcement

Industrial Hemp gray area for law enforcement

Although industrial hemp is becoming a more widely utilized agricultural commodity, law enforcement officers cannot distinguish it from marijuana with current roadside testing, which creates a gray area with the seizure and prosecution of hemp transportation. Hemp seizures have led to misdemeanor charges in Nevada and felony trafficking charges in a case in Idaho for the driver of the vehicle transporting hemp. 

Late last year Nevada Highway Patrol Officers seized nearly 14,000 pounds of what was later determined to be industrial hemp that was being transported from Oregon to Colorado. 

The first seizure occurred in Humboldt County on October 15, 2018, in which 1,500 pounds were seized. The driver had been hired to fly to Portland to pick up the hemp and transport it back to Colorado by a company called IHP partners. 

The company later pleaded guilty to misdemeanor charges of failure to register as an industrial hemp handler and paid a $1,000 fine, $140 administrative assessment fee and $513.09 in restitution to the Nevada Highway Patrol for investigative costs. 
The trooper who stopped the driver reported that the driver initially said he was transporting furniture and that the paperwork for the hemp was printed on the back of what appeared to be an elementary grade level school worksheet. 

When tested with the roadside NIK presumptive drug testing kits, hemp will test positive for THC, indicating that it is marijuana. The current test kits used by law enforcement aren’t able to indicate whether the THC is above the 0.3% threshold that would distinguish it as marijuana instead of industrial hemp. 

“Knowing what we know now, any hemp will test positive with a roadside NIK test even if it’s under the THC content threshold,” said Nevada Highway Patrol Lieutenant Tony Roth. 

In late October and early November, almost 14,000 pounds of hemp were seized across northern Nevada from transport trucks carrying plant material that tested for marijuana using roadside testing kits but later tested as industrial hemp. Approximately 7,000 pounds of the hemp seized was in Elko County. 

Humboldt County Deputy District Attorney Anthony Gordon said that at the time of the hemp seizures, none of the individuals or companies involved had an industrial hemp handlers license and that congress was still negotiating the 2018 farm bill which removed hemp from being a schedule I controlled substance and allows farmers to grow and transport the product more freely. 

Gordon said the 2014 farm bill allowed states to introduce pilot programs allowing farmers to grow hemp for academic research purposes and defined hemp as having less that 0.3% Tetrahydrocannabinol (THC). The 2014 bill did not allow for the transporting of hemp throughout the state or across state lines. The 2014 farm bill expired on September 30, 2018, nearly two months before the 2018 farm bill was signed and enacted. 

Gordon said the companies transporting hemp late last year were transporting the substance in anticipation of the 2018 farm bill that had not passed yet, thinking they would be safe from prosecution with the pending legislation. 

Earlier this year in January, a driver in Idaho was arrested for transporting 6,700 pounds of marijuana which was later determined to be industrial hemp. The county argues that although the 2018 farm bill has been enacted, hemp is still considered a Schedule I controlled substance in state law and that the regulations on the industry are yet to be determined. 

Both the Nevada and Idaho seizures would have been the largest pot bust in state history if they were determined to be marijuana rather than hemp. 

The driver of the Idaho case, Denis V. Palamarchuk, is still facing a criminal charge of felony trafficking and a mandatory 5-year minimum prison sentence if convicted. He pleaded not guilty in the case and is scheduled to go to trial on Oct. 2. 

Officials say that with the increasing demands of cannabidiol (CBD) products for its claimed healing properties, it’s likely that industrial hemp will continue to be transported across state lines between growers and manufacturers. 

Roth said that this is still a gray area for law enforcement and will be handled on a case-by-case basis working with the District Attorney, and hopes for future roadside testing capabilities that indicate the THC threshold in plant material rather than just the presence of THC. This would at least allow officers the ability to definitively distinguish marijuana from hemp at a traffic stop.