Around the time of the COVID-19 outbreak in March, Hall County Solicitor General Stephanie Woodard met with public safety officials and discussed the recent changes in the law concerning hemp and misdemeanor marijuana charges.
"One of the things that all of the chiefs and the public (safety) executives that were in the discussion with me agreed was not knowing when testing by the state would be available — (from) the (Georgia Bureau of Investigation)—and what the testing procedures would be,” she said.
Woodard said there was concern from law enforcement about taking someone into custody with cases that could not be immediately addressed. The solicitor general said the Georgia Hemp Farming Act created a "collateral consequence" of a testing issue for the GBI misdemeanor marijuana testing.
The result has been to move to a citation in lieu of an arrest for misdemeanor possession of marijuana when that is the only charge. Misdemeanor possession of marijuana is less than an ounce.
The hemp act became law on May 10, 2019, which was intended to “allow farmers and businesses to begin to cultivate, handle, and process hemp and sell hemp products for commercial purposes,” according to the act’s text.
As a result, some jurisdictions changed their policies regarding misdemeanor marijuana. Gwinnett County decided to no longer prosecute any misdemeanor marijuana cases with an arrest date on or after May 10, 2019, according to a memorandum dated Aug. 7, 2019.
Hemp has 0.3% or less of THC, the main psychoactive element, whereas marijuana has 5% or higher.
“The reason misdemeanor is an issue is the (Georgia Bureau of Investigation) does not test misdemeanor cases for local law enforcement … There are hundreds of thousands, so they made an administrative decision," Woodard previously told The Times in August 2019. "And as our forensic body, they establish the testing procedures for everything. They would only test and verify felony levels for sheer numbers."
The Hall County Sheriff’s Office said there have been two misdemeanor marijuana cases between March 24, the date of the “temporary directive” and now. Gainesville Police said there have been 12 citations, and half had arrests due to other charges from March 1 through July 21. Woodard said there also have been some cases from the Department of Natural Resources.
"Realizing that's around the time that the COVID shutdown started and law enforcement had to shift to responding to public health issues, I will say that there has not been a substantial number of cases,” Woodard said.
The decision on citations was thought to be something for the interim while watching what the legislature might do to clarify the law. Legislators, however, had their session suspended for months and were unable to take up a number of matters because of the COVID-19 outbreak.
"The change in the state of the law put enough question in the enforcement to not want to, on that basis alone, restrict folks' liberties," Woodard said.
Woodard said she will handle the misdemeanor marijuana cases like she has in the past, where people without a criminal record are routinely offered a pre-trial diversion program that does not lead to a conviction.
"I think that the majority of folks that I have made that offer to have availed themselves of it. If there's a history, particularly if there's a history with offenses such as driving, that's not something I make available,” she said.
Woodard said she has seen a number of misdemeanor marijuana cases in recent days joined with DUI. She said she won't offer pretrial diversion "because that is such a public safety issue."
Woodard said she planned to revisit the decision in the fall, though court disruptions caused by the coronavirus may push that back to winter.
Attorney Andy Hothem pointed to how other jurisdictions close to Hall County have changed their policies regarding misdemeanor amounts of marijuana. Outside of Gwinnett County, former Atlanta Mayor Kasim Reed signed an ordinance in October 2017 reducing the penalty to a maximum penalty of $75 and eliminated jail time if convicted.
"I think that's in line with what other jurisdictions are doing, and I think it's fair,” Hothem said.
In years past, attorney Graham McKinnon said there has often been an option for a “conditional discharge,” where the defendant must satisfy terms of probation that often include treatment. If completed, the case is discharged and the defendant is exonerated.
McKinnon discussed the ramifications of an arrest, irrespective of the outcome. He said there are organizations that aggregate arrest information, which can be discovered through unofficial background checks.
"That background check will show that arrest, but it won't show whatever happened to it. So this person then is sort of saddled with something that ultimately went through pre-trial diversion or conditional discharge that included record restriction and other things,” McKinnon said.
Because that information is available just from the arrest, it “devalues” a conditional discharge or pre-trial diversion, McKinnon said.
He felt the recent move by the solicitor’s office is “very fair."