Lawmakers in Virginia have recently legalized CBD, the cannabinoid in marijuana that provides medicinal benefits but does not get you high. Now, they have to consider how to test for THC, the cannabinoid that does have psychoactive effects and therefore, provides the high that is still illegal in the state. Currently, field tests cannot distinguish between THC and CBD, and the worry is that this lack of distinction is going to send innocent people to jail.
This was not an issue back in February of 2019, when all forms of marijuana were considered illegal in the state. However, when the new law was passed, lawmakers did not take into consideration the process of the state’s forensic labs. These are the tests designed to look for cannabinoids, without considering if those cannabinoids are the legal CBD or the illegal THC.
Given that CBD products in the state are also allowed to contain 0.3 percent or less of THC, it makes the process even more challenging. While the state labs can currently identify THC, they cannot identify the amount. If someone used a product that contained 0.2 percent THC, they could still face possession charges.
Now, those labs are scrambling as they try to come up with an answer that will prosecute those that break the law, while still not placing innocent people in jail.
“Something has to be done about this,” says Attorney Nicholas Braswell of Price Benowitz, LLP. “People are going to take CBD legally, and then be found guilty of marijuana possession under the current system. It is an unfair practice that needs to stop.”
The director of the Department of Forensic Science (DFS), Linda Jackson, thinks so, too. She issued a warning in May about the labs’ current testing capabilities, and that they could potentially be criminalizing innocent people. When issuing her warning, she also stated the DFS was currently working on field tests that would have the capability to distinguish between THC and CBD. The hope is those tests are developed quickly, so law enforcement will only charge those breaking the law, and not those complying with it.
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