Texas: Pharr PD to Implement “Cite-and-Release”

Adopted policy allows officers to cite and release a person in possession of less than 2 oz. of marijuana, as allowable by state law

TEXAS: The City of Pharr Police Department will be implementing a new Cite-and-Release policy, which allows officers in the field an option to release a person with less than 2 oz of marijuana. This is a Class B misdemeanor where normally a person is arrested at the scene and transported to jail.

The policy adopted by the Pharr Police Department is governed by Article 14.06 of the Texas Code of Criminal Procedure, enacted as HB 2391 by the 80th Texas State Legislature in 2007, and allows for law enforcement officers to cite and release individuals who commit certain offenses. Due to the COVID-19 pandemic, the Pharr Police Department decided to adopt the “Cite and Release” policy and implement it department-wide to minimize the number of individuals being jailed for certain low-level misdemeanor offenses, in this case, possession of less than 2 ounces of marijuana, Misdemeanor B.

There are prerequisites to this option, and include the following:
1.  The offense must be possession of marijuana.  The marijuana must weigh less than two (2) ounces, Misdemeanor B.
2.  The offense must occur in Pharr, Texas
3.  The suspect must reside in Hidalgo County, Texas.
4. The suspect must be in possession of a valid driver’s license or identification.
5.  The suspect must be 17 years of age or older.
6.  Possession of marijuana must be the only offense in which the suspect is subject to arrest.

Officers will have the discretion to arrest or release at the scene. This policy simply gives them another alternative. If released, the person will still have to be arraigned at our municipal court within 14 days of the incident and will be released on a PR bond. The Possession of Marijuana Class B case will still be completed by our detectives and sent to the District Attorney’s office as any other case.

“This gives our officers a reasonable alternative to an arrest at the scene if the requirements are met,” said Pharr Police Chief Andy Harvey. “I believe this is another step in our efforts to police in a manner that adds value to community,” he continued.

“It’s important to note that this policy does not decriminalize anything, rather can provide a more dignified option for a low-level offense,” Harvey added. “We are partnering with the Hidalgo County DA’s office and our own municipal judge to make this possible. These are critical partnerships that when working together, can make a difference in our communities,” continued Harvey.

Hidalgo County District Attorney Ricardo Rodriguez stated, “Our office supports the efforts of the Pharr Police Department, and any other law enforcement agency, to implement this policy as allowable by state law.” He continued, “It is important that our community understand that the offense is not excusable and is still punishable by law, but this adds a level of flexibility to reduce our jail population.”

Mayor Ambrosio Hernandez, M.D., praised the leadership of Chief Harvey for implementing smart policing strategies as allowable under state law that will help provide fair alternatives for low-level offenses. “The offenders will still be held responsible for the offenses committed, but this will help to expedite justice in a fair and responsive manner,” Hernandez ended.

The new Cite-and-Release policy will begin implementation this week.

Vicente Sederberg Representing Hemp Industry In Federal Lawsuit Against The DEA

DISTRICT OF COLUMBIA:  A national hemp trade association and a South Carolina-based hemp company have filed a federal lawsuit against the Drug Enforcement Administration, challenging a rule the agency implemented last month that could have far-reaching consequences for the U.S. hemp industry.

The petition filed Friday afternoon in the U.S. Court of Appeals for the District of Columbia Circuit asks the court to review an interim final rule, “Implementation of the Agriculture Improvement Act of 2018,” which was promulgated by the DEA on August 21. The lawsuit claims the rule is unlawful because it exceeds the DEA’s legal authority and violates the Agriculture Improvement Act of 2018, also known as the farm bill. The petitioners also argue that acting DEA administrator Timothy Shea, who is individually named as a respondent along with the agency, issued the interim final rule without observing procedures required by law.

The DEA’s interim final rule clarifies that all hemp derivatives or extracts exceeding 0.3% THC shall remain Schedule I controlled substances. This could be interpreted to include intermediate hemp derivatives that temporarily exceed 0.3% during processing, but contain less than 0.3% in final products. As such, it improperly establishes the DEA’s authority over legal hemp activities, which is contrary to the plain language and intent of the 2018 farm bill, according to the petitioners.

The petitioners in the lawsuit are RE Botanicals, Inc. and the Hemp Industries Association.

RE Botanicals, Inc. is a hemp manufacturer and retailer based in South Carolina. In 2019, it acquired Palmetto Synergistic Research LLC (dba Palmetto Harmony), which was founded to provide lawful, reliable, and high-quality hemp products.

“We are a small, woman-operated company,” said Janel Ralph, CEO of RE Botanicals. “The DEA’s new rule could put us out of business overnight.”

HIA is a trade association that represents approximately 1,050-member hemp businesses, including approximately 300 hemp processors and individuals involved in, or impacted by, the manufacture, distribution and/or sale of hemp extract and other products lawfully derived from industrial hemp. HIA successfully challenged DEA rulemaking in 2003, when the agency amended federal regulations to include naturally occurring THC within the definition of “synthetic THC,” thereby treating it as a Schedule I substance despite it falling outside the definition of marijuana in the Controlled Substances Act.

“When Congress passed the 2018 farm bill, it explicitly carved hemp and its derivatives out of the Controlled Substances Act so that hemp can be regulated as an agricultural commodity,” said HIA President Rick Trojan. “The DEA’s interim final rule could create substantial barriers to the legal manufacturing of hemp-derived products, a critical component of the hemp supply chain, and devastate the entire hemp industry. Although the DEA states that is not its intention, the rule must be amended to ensure hemp remains an agricultural crop, as Congress intended.”

The petitioners are represented by leading hemp industry attorneys at Vicente Sederberg LLP, Kight Law Office PC, and Hoban Law Group, along with appellate attorneys from Yetter Coleman LLP, which has received national attention for its work against the DEA in the realm of cannabis research.

“The DEA implemented this rule without following proper rule-making procedures, such as providing the public with notice and the opportunity to comment,” said Shawn Hauser, a partner at Vicente Sederberg LLP and chair of the firm’s hemp and cannabinoids practice. “The petitioners believe legal action is necessary to protect the lawful U.S. hemp industry that Congress intended to establish when it enacted the 2018 farm bill.”

Congressman Riggleman Sends Letter To Secretary of Agriculture, Sonny Perdue, On Hemp Production

DISTRICT OF COLUMBIA: Congressman Denver Riggleman sent a letter to Secretary of Agriculture, Sonny Perdue, to discuss potential changes to the implementation of the U.S. Domestic Hemp Production Program.  The letter suggested improvements to benefit farmers and align the rules with the realities that hemp farmers face while growing.

“Virginia and the 5th District are uniquely positioned to lead in the arena of hemp production and I am grateful to the entire Virginia delegation for signing this letter regarding the U.S. Domestic Hemp Production Program,” said Congressman Riggleman.  “Industrial hemp is a potential game changer for Southside Virginia.  If we can improve the USDA hemp program to help Virginia farmers, we have the potential to bring huge economic growth to the 5th District.  This letter will provide clarity for farmers and help production.”

Congressman Riggleman’s letter was cosigned by the Virginia delegation in the House of Representatives. The changes it asked for would reduce regulation surrounding hemp farming as well as its post production and distribution.

You can read the full letter here.

Hoban Law Group Files Ninth Circuit Petition To Challenge Recent DEA Classification of “Marihuana Extracts”

COLORADO: In an overreach of authority and without consulting Congress, the Drug Enforcement Administration (DEA) issued its Final Rule, the “Establishment of New Drug Code for Marihuana Extract,” on Dec 14, 2016. In response to the change, which serves to potentially devastate developing businesses and consumer, textile and manufacturing industries related to industrial hemp and other lawfully derived cannabinoids, Hoban Law Group has filed a petition in San Francisco’s United States Court of Appeals for the Ninth Circuit to challenge what appears to be the DEA’s attempt to control an otherwise lawful substance.

The petition, filed on January 13, 2017 in California’s United States Court of Appeals for the Ninth Circuit, is on behalf of three Petitioners: the Hemp Industries Association (an industrial hemp trade organization representing an array of industrial hemp industry actors); RMH Holdings, LLC (which sources its products from industrial hemp lawfully cultivated pursuant to the Agricultural Act of 2014 (also known as the Farm Bill)); and Centuria Natural Foods, Inc. (which lawfully imports certain exempted parts of the Cannabis plant, and oils and derivatives there from, such as stalks and fibers). The recent Final Rule substantially impacts businesses long operating in compliance with existing laws that now could be facing significant change in existing policy. These adverse impacts are caused by the Final Rule’s attempt to create a drug code encompassing all cannabinoids as Schedule 1 substances without reflecting the parts of the Cannabis plant which are Congressionally exempted from the definition of “marihuana” under the Controlled Substances Act and/or are exempted from treatment as a controlled substance.

“This is an action beyond the DEA’s authority. This Final Rule serves to threaten hundreds, if not thousands, of growing businesses, with massive economic and industry expansion opportunities, all of which conduct lawful business compliant with existing policy as it is understood and in reliance upon the Federal Government.” -Hoban Law Group Managing Partner Bob Hoban.

Unfortunately, the DEA’s Final Rule exceeds the authority granted it by Congress and is inconsistent with the language of the Controlled Substance Act and other laws applying to industrial hemp. The genus Cannabis sativa L. contains over 80 cannabinoids, such as those commonly known as tetrahydrocannabinol (THC) and cannabidiol (CBD). The DEA’s Final Rule takes the position that the mere presence of any cannabinoid extracted from the Cannabis plant automatically renders that substance a “marihuana extract,” despite no cannabinoid except for (synthetic) THC being expressly scheduled under the Controlled Substances Act. This reclassification contradicts the DEA’s acknowledgement in the past that certain cannabinoids exhibit different effects: THC is known for psychoactive properties, whereas CBD, CBG and other cannabinoids are not commonly associated with psychoactive properties. In addition, the DEA’s Final Rule fails to recognize that cannabinoids can be derived from sources other than the Cannabis plant, such as a certain South African daisy, some chocolates, human breast milk and black pepper, highlighting the point that where or from what plant the cannabinoids originated is very difficult to prove.

Though the DEA has referred to their recent Final Rule as a “mere recordkeeping measure,” Hoban Law Group is acting swiftly on behalf of the Petitioners to ensure that continued lawful pathways remain available for industrial hemp companies seeking to remain compliant with federal law. The Final Rule raises concern that this type of overreach could become more commonplace, continuing to widely affect many industrial hemp companies and a wide variety of products currently marketed for sale. Whether the DEA’s motives are negligent or intentional, a primary concern is that this “mere recordkeeping” is a misuse of the drug code that could lead to abuse and misunderstanding of the law by other local, state and federal agencies and an unwarranted chilling effect upon the industrial hemp industry.

Notably, the DEA has sought to unilaterally reclassify cannabinoids before, and lost. See Hemp Indus. Ass’n. v. DEA357 F.3d 1012, 1014 (9th Cir. 2004); Hemp Indus. Ass’n v. DEA333 F.3d 1082, 1089 (9th Cir. 2003).

Washington Medical Marijuana After July 1

By Aaron Pelley and Anne van Leynseele

Many clients and potential clients have been asking NWMJLaw about the changes coming to Washington State’s medical marijuana system when the new laws take effect on July 1, 2016. Specifically, we have been asked how the collective garden statute being repealed will affect patients and Farmers’ Markets.

Farmers’ Markets

Across Washington State there are Farmers’ Markets where medical cannabis patients can obtain their medicine without donating to a shop with high overhead, the savings is passed to the patients. These markets have become popular over the last five years because they allow the patients, in most cases, to connect with the grower and gain valuable information about the particular strain they are receiving. The biggest benefit to patients is the price comparison; where a requested donation for 3.5 grams can be as high as $60 dollars at some dispensaries, it is usually $25 dollars directly from the vendor.

Also, patients can choose the grower they like and access a wealth of information. Currently, the defensibility of these markets is under the collective garden model (RCW 69.51a.085). The statute allows up to 10 qualifying patients to participate in one garden. This not only applied to markets, but to access points and “large scale” medical grows. However, the section fell silent on the amount of time the patient must be a member of the garden to be considered a “true member.” So for most markets interested in operating with the least amount of risk, the best method was to rotate members in and out of the garden/vendor. For example, a patient would be sign in at 10:42am conduct their donation, accept their cannabis, and sign out of the garden at 10:45am, leaving space for the next patient to then come “into the garden” as a member.

Under the new system, RCW 65.51a.085 will be repealed and replaced with a medical cooperative model. This marks the end of Farmers’ Markets, Access Points, and “large scale” medical grows. The new medical cooperative garden model changes the system. The biggest change to farmers’ markets specifically by limiting both membership and timelines.

Beginning July 1, 2016, up to four patients who are registered in the DOH database can join together to form a cooperative garden. Patients or designated providers who participate in a cooperative may grow the total number of plants authorized for the participants (6-15) with no more than 60 plants total per tax parcel. The cooperative must be registered with the state and include the names of all participants. If a patient no longer participates in the cooperative, they must notify the LCB within 15 days of the withdrawal from the cooperative. Furthermore, additional patients may not join the cooperative for 60 days starting from the date of notification of the exiting member. This means the basis for the farmers’ markets has been removed. In the eyes of law enforcement anyone participating is just selling pot and can be convicted with little or no defense available.

If you were looking to find a way to serve patients in a market setting as the designated provider, by providing for multiple patients, that was also done away with in 2011. A designated provider may not serve more than one patient within a 15-day period. Simply put, as a market, your options have run out.

Collective Gardens and Scaled Grows.

Over the years, patients, defense attorneys, and even prosecutors got morecreative to address the astonishing number  of patients needing access to an adequate supply of cannabis. Not all patients are able to grow their own cannabis due to medical issues or simply because they lack the skill needed. Standard collective gardens allowed up to 10 patients to come together to grow a maximum of 45 plants. This model allowed large scale grows to operate and ensure every patient could have an adequate supply of RCW 69.51a.085 fell silent on the boundaries of a collective garden. Since a collective garden could only have 45 plants, it became practice that multiple collective gardens could exist on the same property as long as each garden was distinguished from the others.

As of July 1, 2016 this section of the law will be repealed, leaving large scale grows illegal. The collective garden statute is replaced with a new medical cooperative garden model where up to four patients who are entered in the database can join together to form a cooperative garden. Patients and designated providers who participate in a cooperative may grow the total number of plants authorized for the patient (6-15 plants each) and no more than 60 plants total. The cooperative must be registered with the state, include the names of all patients, and located at the home of one of the participating patients. The garden is subject to inspection at any “reasonable” time to ensure compliance with the new limits.

Dispensaries (Access Points)

Since the early 2000s patient access points, commonly know as dispensaries, operated despite repeated bans, raids, polite robberies, and city or county enforced shut downs. The repeal of RCW 69.51a.085 from the Collective Garden Statute will effect the medical marijuana supply chain as it applies to dispensaries. Similar to the Farmers’ Markets model, dispensaries relied on rotating members in-and-out of their collective gardens or some operate as a designated provider. Patients would walk in to the access point/dispensary, have their recommendations verified through an online verification with no need to disclose their qualifying condition, and then signed into the garden to obtain their medical cannabis for their qualifying condition. With the repeal of collective garden statute, the entire medical system is being folded into the recreational market. If they could meet the standard, dispensary owners opted to obtain an LCB license with a medical endorsement or now must close their retail store.

After July 1, 2016, access points will be placed back into the category of outlaws. The legal defense that was artfully crafted over the years is now set to expire and the arguments and tactics that have kept countless people out of jail will expire with them.

Actions that Can Cause Legal and Business Problems

In sum, there is a concise list of activities that should end by midnight June 30, 2016.

• Selling cannabis at farmers’ markets on a “rotating-member model”

• Collective or large scale medical grows

• Any 502 licensee or 502 applicant or license holder should understand the risk to their license should they continue to grow illegally

This memo is made available by NWMJ Law for educational purposes only as well as to provide a general information and a general understanding of the law, not to provide specific legal advice. By providing this letter there is no attorney client relationship between you and NWMJ Law. This letter should not be used as a substitute for legal advice from a licensed attorney in your state.