Paulding's district attorney has stopped prosecuting some cases until a new testing method is found or a law is updated to make it clear to officers the legal and illegal parts of the same plant.
Meanwhile, two Paulding law enforcement agencies say their officers are going on a “case by case basis” to determine if arrests are warranted for marijuana possession.
Gov. Brian Kemp on May 10 signed a new law allowing the legal possession of industrial hemp for farming.
Hemp is a part of the marijuana plant that can be used to make paper, textiles, clothing and other items. It is not considered a Schedule I drug because it contains very low levels of tetrahydrocannabinol (THC), the psychoactive substance in marijuana.
The new law allows buyers to possess hemp with a THC concentration of 0.3 percent or less, according to the news website Curbed Atlanta.
However, some Georgia prosecutors and judges have said the new law has made it difficult for police agencies to enforce marijuana laws.
The most advanced testing methods reportedly only determine the presence of THC but not the amount within the plant -- making it difficult to determine whether it is legal hemp or the illegal part which has much higher THC levels.
Paulding County District Attorney Dick Donovan said GBI officials recently said they are developing new testing methods that can determine the difference.
Donovan said after the law was passed he set a new temporary policy for his office on how it would respond to future cases.
"It is important to note, that this is the policy of the District Attorney’s office based on a difficult circumstance resulting from a new law," Donovan wrote.
He said the policy stated:
• In cases where felony marijuana is the only felony related to the case, then "the DA’s Office will set the case aside and notate the case on a list kept in our office.
"In these cases, we will be consenting to a bond so that a defendant will not be sitting in jail indefinitely. There is a four-year statute of limitations in these felony cases.
"By holding these cases, we will give the GBI time to give us guidance on whether they’ll have a test for THC percentage and what they will be willing to test.
"We will also wait for a possible legislative fix in the 2020 legislative session.
• In cases where misdemeanor marijuana "is the only misdemeanor related to the case, then the DA’s Office will set the case aside and notate the case on a list kept in our office.
"In these cases, we will be consenting to a bond so that a defendant will not be sitting in jail indefinitely. There is a two-year statute of limitations in these cases."
• Where a person is arrested for misdemeanor or felony marijuana after May 10, and the person is arrested for another non-THC dependent felony, "the DA’s Office will decline to prosecute the marijuana charge for insufficient evidence."
"The DA’s Office will proceed with the prosecution of the other non-THC dependent felonies."
Donovan also said in the policy that if the law enforcement agency "can determine by independent means, not laboratory testing, that the substance is marijuana, the case should be made as usual."
Sgt. Ashley Henson of the Paulding County Sheriff's Office said his agency has consulted with Donovan and deputies “are going to follow what the law states and take every incident on a case by case basis.”
“We have consulted with our district attorney and if there is enough evidence to prove what the substance is, we will either make an arrest or not based on the facts of each case,” he said.
Henson said deputies will proceed based on the “totality” of the circumstances of each case and “we will follow what the law states.”
If deputies have enough evidence to prove a suspect is possessing marijuana, they will “arrest and charge the suspect appropriately,” he said.
“If we do not have enough evidence to prove it is marijuana, we will not make an arrest,” Henson said.
The Paulding County Sheriff’s Office patrols and enforces the law in areas outside Paulding's three cities.
Chief Joe Duvall of the Dallas Police Department said he is waiting until the city attorney gives his department an opinion on how to proceed on marijuana possession cases.
However, he said his officers can issue citations for marijuana possession on a “case by case” basis based on the evidence.
Chief Jamison Sailors of the Hiram Police Department said his officers will not arrest violators "until clarification of the law is made, testing methods are changed or the law is changed."
"We will be taking possession of the substance and completing an incident report pending prosecution upon solution of the above factors," Sailors said in an email.