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Alcovy Circuit will not file blanket dismissals of marijuana charges following state hemp law
Hemp Plant
A hemp plant grows on the edge of a field. (Photo by: Patrick Pleul/picture-alliance/dpa/AP Images)

COVINGTON, Ga. - On May 10, Gov. Brian Kemp signed Georgia's Hemp Farming Act. The legislation legalized the growth and sale of hemp for certain academic research and changed the definition of "marijuana" under the Georgia Controlled Substance Act. Federally, hemp contains 0.3% of Tetrahydrocannabinol (the principal psychoactive constituent of cannabis) or lower. 

Layla Zon
Layla Zon

Since then, district attorneys across the state have released varying opinions on the prosecution of marijuana cases. As it stands, law enforcement can test for the presence of THC, but are unable to test for the amount, meaning they would not be able to determine if a substance was illegal marijuana or legalized hemp. 

Alcovy Judicial Circuit District Attorney Layla Zon told The Covington News she still intends to prosecute the cases, but will individually review the evidence once testing becomes available if a defendant claims to possess hemp. 

"The Alcovy Circuit District Attorneys Offices, which includes both Newton and Walton Counties, will not be filing blanket dismissals of all marijuana charges that occurred after May 10, 2019," she said. "However, the cases will be looked at individually and any charging decisions will be based on all the facts and circumstances of that individual case. Should a claim or issue be made on a specific case that a substance is hemp instead of marijuana, the District Attorney's Office will hold those cases and seek to continue them until the proper testing is available. If an individual is in custody in such a case, the DA's office will consent to a bond to ensure the individual is not held in custody during this time.

"Further, the District Attorney's Office will consider the entirety of a case against an individual. Many cases involving a charge of marijuana also include numerous serious felonies in which the defendant is facing mandatory prison time. The District Attorney's Office will consider the entire case and may dismiss marijuana charges when a defendant is facing more serious charges to ensure that justice is served in a timely manner for victims of crimes in Newton and Walton Counties. This will depend on the facts and circumstances of the individual cases."

Zon said she understands her colleagues across the state have different opinions on the matter.

"I am not going to dismiss a case where a defendant admits he has marijuana in his pocket or his car and believe it or not that happens a lot," she said. "My view is that I took an oath to uphold the law. I understand that each case will have to be closely scrutinized to ensure that the defendant’s rights are protected. I will ensure that happens as well.  

"I have plenty of cases to prosecute so I can assure you that I don’t intend to prosecute folks for hemp. However, I haven’t come across too many people who carry hemp in small baggies with smoking devices."

It is rare for a "simple possession of marijuana" case is given to Zon's office, she said. 

"If an individual possesses less than an ounce of marijuana, they will most likely be issued a citation instead of being arrested on a warrant," she said. "When an individual is issued a citation, their case will be handled in either a municipal court or probate court. The District Attorney has no input or responsibility in those cases. Only if an individual is arrested on a warrant or seeks a jury trial on their citation does the DA's Office handle the matter. The determination on whether a citation is issued or an individual is arrested on a warrant is up to the law enforcement agency handling the matter based on the facts and circumstances of that specific case and not the District Attorney's Office.

"So far in 2019, the District Attorney's Office in Newton has been referred 109 warrants for possession of less than an ounce of marijuana (a misdemeanor amount) and less than 20 warrants for felony marijuana charges. In Walton County, the DA's Office has received 114 warrants for individuals possessing less than an ounce of marijuana and approximately 50 warrants for felony marijuana charges. 

"In many of these cases, the defendant is facing other, more serious, charges. For example, an individual who flees from police and possesses a small amount of marijuana may face felony fleeing charges along with a misdemeanor marijuana possession charge."

Cases involving marijuana, both misdemeanor and felony, unless it involves the sale, distribution or trafficking, that are handled by the DA's office are placed into a Pre-Trial Intervention Program if the individual has no criminal history. That way, first-time offenders arrested on charges of possession of marijuana are given the opportunity to have their charges dismissed and have no criminal history for employment purposes. 

Zon said hemp has yet to be an issue she has faced in her time as a prosecutor. 

"In just shy of 20 years as a prosecutor, I have never heard of a single defendant claiming that they possessed hemp instead of marijuana.," she said adding that she is unaware of any hemp farms in either Newton or Walton Counties. 

"The GBI has said they believe they will be able to test the amount of THC in a sample in the near future," Zon said. "However, the exact date is unknown. Once a test is available, the GBI will test felony amounts, or amounts greater than an ounce. Local law enforcement departments will be responsible to test lesser amounts. This will require the local departments to gain the ability to test the amount of THC. This will likely occur after the GBI is able to pass their methods on to the local departments."