GEORGETOWN, Texas (FOX 7 Austin) - A recent trip to the Williamson County Jail turned a hypothetical issue into hard time reality for Sheriff Robert Chody. "I've given the full discretion to officers, let me give you an example; we had an incident where there was a young lady who had CBD Oil who was claiming that it was a legal amount and in that case the deputies felt strong that if was legal based on all the evidence that was there, but they had to arrest because it was a felony and that's one example where I think we can use the discretion for the officers, to say, seize the item, turn it into evidence write the report and don't make the arrest," said Sheriff Robert Chody.
The Sheriff is working on a policy change because of the new state law that legalized hemp, and CBD oil, which have low levels of THC. The law immediately took effect with the Governor's signature.
It was done before labs and field testing kits were upgrade to properly measure the concentration of what's found. "Well the problem is, you have someone with something that is probably legal in some cases, not in most cases I don't think, but in some case, and we do not want to arrest that person who is not breaking the law, "said Sheriff Chody.
What the sheriff is drafting up is essentially a modified 'Catch and Release' policy that involves confiscation. "Maybe our Deputies take possession, of that, as evidence and write a report up, doing everything other than the arrest, until we can prove that, but it brings up other issues, can we seize a piece of property of somebody's that isn't illegal, "said Sheriff Chody.
The sheriff's K-9 teams, which are showcased on his social media sites, may also need a new policy. Most dogs, used by law enforcement, are trained to alert when they detect drugs.
That "hit" provides probable cause, which justifies a search.
But the dogs can't determine if what they detect exceeds the new legal limit.
The problem was first raised, earlier, when FOX 7's Jennifer Kendall spoke to Robert Segura with the Capital Area Private Defense Service. "If the dog can't tell the owner, "this is .3 percent or greater or .3 percent or less,' I think that those cases are going to wind up being litigated in the courts as a lack of probable cause from the defense," said Segura.
There is already case law on the K-9 problem. The Colorado Supreme Court recently ruled an alert by a drug sniffing dog can no longer qualify as probable cause. That ruling is not enforceable in Texas.
The Texas District and County Attorneys Association recently addressed the K-9 problem. The group issued a statement that advised; drug dogs are not qualified to distinguish between legal hemp and illegal marijuana.
The advisory is not legally binding and Sheriff Chody says he will continue to use his K-9 teams. "Currently right now if they get a hit to proceed as normal until we get this policy, "said Sheriff Chody.
Time is short because the sheriff realizes a legal challenge in the Lone Star state may be inevitable. Another big unanswered question regarding K-9's, according to the Sheriff is whether drug-sniffing dogs can be retrained to determine what is legal and what is not.
As patrols continue, the sheriff says he will continue to meet with the County Attorney and D.A.
Final wording for his new policy could be in place sometime next week.