CLEVELAND — Prosecutors across the state are being told not to pursue low-level marijuana possession cases or to delay their prosecution for what could be months, all because of a legal loophole prosecutors say they warned lawmakers about.
"Do you have experience with the odor of hemp?," lawyer Ian Friedman asked an Ohio State Highway Patrol Officer.
"I'm not sure what hemp is," the trooper replied.
The trooper also admitted he didn't know if hemp looked different from marijuana and said, at that point, he hadn't had any training about the differences between the two.
"The trooper we're speaking to, it's not his fault," said Friedman. "He's doing what he's supposed to be doing every day and doing what he's taught to be done. This is the higher-ups."
The main problem for the State of Ohio is that hemp and marijuana are not very different. They both come from a similar type of plant, smell the same, and can be found in a green, leafy form that has been a visual cue to law enforcement officers for generations that someone they've stopped is breaking the law.
The only real difference is how much THC, the chemical compound that makes users high, is present.
"If I were to suggest to you that that was hemp material, the green, leafy material, you would not be able to tell me one way or the other whether or not that's true or not, correct," Friedman asked the trooper in the courtroom video.
"We would have to wait for results from the crime lab," the trooper replies.
But Ohio Attorney General Dave Yost told Ohio prosecutors in a letter that the state's crime labs can't tell the difference either.
Their equipment only can tell if THC is present, not how much there is. Legal hemp can have small amounts of THC, triggering positive tests when the people who have that hemp are actually within the law.
"This was set up to fail," said Friedman, referring to Senate Bill 57, legalizing hemp.
Friedman says the bill didn't get the proper due diligence from the state.
"There's been no real thought behind this," said Friedman. Everything that the State of Ohio has done has been reactive."
The Cuyahoga County prosecutor agrees, telling News 5, "These concerns were provided in advance to the nill's sponsor and other leaders in the State House and they were ignored."
The Governor's office responded, saying:
"We are aware that this issue was raised to the General Assembly before they passed the hemp bill. However, we are not aware of anyone who testified before the General Assembly that the bill should not be passed because of this issue. The biennial budget bill appropriated almost $1 million for BCI to purchase testing equipment to assist local law enforcement in these investigations. Further inquiries on BCI testing should be directed to BCI."
Still, Friedman says it puts law enforcement officers into a bind.
"Now you've got law enforcement that are just trying to do their jobs on the streets, that are going to have to accept what pepole are telling them and, perhaps, let them go," said Friedman.
Ohio State Highway Patrol tells News 5 that troopers got additional training at the end of July, instructing them to take all the circumstances that led them to stop someone into account when trying to determine if someone is carrying illegal marijuana, or material like hemp or medical marijuana.
Cleveland police tell News 5: "There are policies being drafted now relative to marijuana. We just did a legal update on the cards people carry when they have the Rx."