AUSTIN, Texas - With the legalization of hemp taking place in Texas only three weeks ago, there is still a lot prosecutors have to figure out.
“With this new law, if the substance has a THC content of 0.3 percent then it is a legal substance, hemp. If it has a content greater than 0.3 percent the delta-9-tetrahydrocannabinol, then it is an illegal substance, marijuana,” said Travis County District Attorney Margaret Moore.
One question on many prosecutors’ minds’ is how the law could affect the use of drug sniffing dogs to detect illegal substances.
The Texas District and County Attorney's Association said drug dogs are not qualified to distinguish between legal hemp and illegal marijuana.
“There is concern about that because the dogs alert if there is any THC at all,” Moore said.
That means a positive K9 alert used as probable cause to search a vehicle could get an entire case dismissed.
“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 Richard Segura with the Capital Area Private Defender’s Service.
Several states that legalized marijuana found out the hard way that it was a problem to teach their old dogs new tricks. The majority of drug-sniffing dogs couldn't be retrained to stop alerting on now-legal substances. And, even if they were, the scrutiny they would face in court would make the burden of proving a case beyond a reasonable doubt too difficult.
“So I think we're going to look at other states and what they're doing with their dogs as a guiding light as to what some good ideas could be with retraining our dogs, or how to deal with the probable cause issue when a dog alerts,” Segura said.
Just two months ago, the Colorado Supreme Court ruled officers must have probable cause that an illegal drug is present before using a drug detection dog that alerts to a legal substance. The dogs alert alone didn't qualify as probable cause anymore because the K9 may be responding to legal activity.
Texas prosecutors are now researching whether that same opinion could be applied here.
“As far as I know, the state legislature either failed to recognize the impact this would have on prosecution or chose to move forward without that input,” said Moore.
Moore will meet with law enforcement partners Wednesday to make some decisions about prioritizing certain marijuana cases.
Williamson County District Attorney Shawn Dick said he expects it will effect a small number of cases and his office will deal with probable cause issues on a case by case basis.
The Hays County District Attorney released the following statement to FOX 7 Austin: "We have been discussing the impact of the new statutes with my staff, but I don't have any comment on how we will be handling the cases at this time.”