Pot, as it’s defined, stymies prosecutor

OLYMPIA – Prosecutions for growing and trafficking marijuana could grind to a halt in Washington, a result of a glitch in a new law, a lack of equipment at the state crime lab and the basic chemistry of the oft-discussed weed.

The Washington State Patrol Crime Laboratory can’t say for sure that material seized in growing operations, drug buys or major possession cases meets the new definition of illegal marijuana, King County Prosecutor Dan Satterberg told the House Government Accountability and Oversight Committee on Thursday.

“We can’t enforce the law,” he said.

In an attempt to correct the problem, the committee approved a bill to change the definition of marijuana, which voters approved last year in Initiative 502. That law not only allows adults to consume and possess small amounts of marijuana but also requires anyone who grows or sells it to be licensed by the state; those without a license face felony charges for illegally growing or trafficking.

“Obviously, this is something we need to act on now,” said committee Chairman Chris Hurst, D-Enumclaw.

But House Bill 2056, which was introduced Wednesday, would have to pass both houses with a two-thirds majority before the session ends, either on Sunday as scheduled or in a likely special session.

Hurst said he couldn’t speculate on the bill’s chances. The committee did its job by sending it to the House for further consideration, he said. But if legislators don’t pass the law before going home, marijuana growing, sale and possession cases might not be prosecuted for the rest of the year.

The committee got a science lesson in marijuana chemistry from an array of laboratory analysts, attorneys and medical marijuana experts. They explained there are different varieties of the cannabis plant: Marijuana varieties are grown to produce high levels of delta-9 tetrahydrocannabinol, the psychoactive substance that produces the “high”; hemp varieties are grown for their fiber and oil content and contain much lower levels of a precursor chemical, tetrahydrocannabinolic acid, or THC-A.

Before I-502 passed, that wasn’t a problem, because both marijuana and hemp were illegal, and the presence of any type of THC was enough. Under the initiative, however, illegal is defined by the percentage of delta-9 THC in the material; the law doesn’t mention THC-A.

THC-A turns into delta-9 THC when a marijuana plant dries after harvest, is heated, burned or baked into food. The machine the state lab uses to test plants seized in grow operations, sale or possession cases heats the material to obtain a reading. An analyst can’t say on the stand how much of the delta-9 THC in the test results was THC-A in the original product.

This doesn’t affect charges for driving under the influence of marijuana, which are based on a blood test for a certain level of delta-9 THC.

Alison Holcomb, the author of I-502 and drug policy director of the state chapter of the American Civil Liberties Union, said the initiative used language common in other countries and wasn’t intended to let illegal growers or sellers avoid prosecution. But if she were defending someone in a marijuana case, she said, “I would pick at every evidentiary opportunity I had.”

Questions about test results came as news to defense attorneys in Spokane. Public Defender John Rodgers and private attorney Frank Cikutovich both said they hadn’t heard about the potential problems with lab tests that could affect cases involving growing, selling or possessing marijuana.

The state could buy different testing equipment – a liquid chromatograph mass spectrometer – that tests material without heating it. But that would require training for the technicians, and the tests are time-intensive.

The cost of that machine was debated at the hearing, with state lab officials saying one costs at least $60,000. The state would be better off spending the money on other equipment that would help ease the backlog on DNA testing, Satterberg said.

Steve Sarich, an advocate for medical marijuana, said one could be picked up on eBay for as little as $7,500, and the state doesn’t need to regulate THC-A, which isn’t a psychoactive drug.

Rather than spend the money for new testing equipment, the proposed bill would change the law to say the total content of THC-A and delta-9 THC could be used to determine whether seized material was marijuana.

Reps. Matt Shea, R-Spokane Valley, Jeff Holy, R-Cheney, and Cary Condotta, R-East Wenatchee, voted against the bill. If Washington wants to allow farmers to start growing industrial hemp along with state-regulated recreational marijuana, “we’re going to have to get this equipment,” Condotta said.