ISP might get testing equipment to tell difference between marijuana and hemp

BOISE — Idaho State Police troopers can field test substances to determine whether they contain any of the illegal drug tetrahydrocannabinol, or THC — the psychoactive ingredient in cannabis — but they don’t have a way to distinguish between marijuana and hemp, even though pot has much higher levels of THC.

Even the state crime labs don’t have the equipment to tell the difference, state Sen. Abby Lee, R-Fruitland, told the Statesman on Friday after a budget-setting committee approved a request to fund new drug-testing equipment for ISP.

“This is in response to what we can see coming,” Lee said. “They need these tools, and they need them this year. If they have an arrest, they can’t wait to send those results out to Kentucky.”

The Joint Finance-Appropriations Committee on Friday appropriated about $240,000 for three testing devices, which would be placed at crime labs in Meridian, Pocatello and Coeur d’Alene, Lee said. The House and Senate must approve it.

Lee said it was lawmakers, after conferring with prosecutors, who sought the funding for the equipment, not ISP. The 2018 federal farm bill, approved in December, legalized commercial hemp production — and that’s already raising interstate commerce questions.

“The impetus for this was: What are the concerns with legalizing hemp in Idaho, and oh my goodness, we’ve got other states who think they can transport [hemp] through our state,’” said Lee, one of the sponsors of a bill that would legalize hemp production in Idaho. “The landscape has changed. I really do think Idaho, whether we allow people to have it, grow it and possess it, the federal government is going to promulgate rules about how that transport happens.”

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Col. Kedrick Wills, director of the Idaho State Police, spoke briefly at the hearing. In responding to a lawmaker’s question about whether transporting hemp through the state is legal, he said this:

“Currently, hemp or any other substance that contains THC is illegal in Idaho … If the federal government promulgates rules that allows transportation through our state, that could change that,” Wills said, according to a recording of the hearing.

JFAC approved the supplemental appropriation in a 17-2 vote.

In late January, ISP seized a semitrailer filled with 6,700 pounds of a green, leafy substance that a trooper believed was marijuana. The driver of the truck, and the Colorado owner of the cargo, insisted that it was industrial hemp.

Police sent samples out of state for testing to determine what it was, but have declined to release the results to the Statesman due to the ongoing investigation.

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Big Sky Scientific, the owner of the cargo, sought a preliminary injunction for the release of the truck but a federal judge denied it. The judge’s ruling included a footnote revealing that the tests showed the cargo was hemp, Big Sky officials said in a press release, and they are appealing the decision to the U.S. Court of Appeals for the 9th Circuit.

Idaho law considers hemp to be equivalent to marijuana, with both being controlled substances. Big Sky Scientific argued in its lawsuit against ISP and Ada County that the farm bill has legalized hemp and the Commerce Clause of the U.S. Constitution protects the right to transport it across state lines.

“The 2018 Farm Bill prohibits states from blocking the transportation of industrial hemp in interstate commerce as defendants have done,” the lawsuit says. “Notwithstanding the 2018 Farm Bill, states cannot prohibit the shipment of a legal good through interstate commerce under the Commerce Clause.”

This article was first published by the Idaho Statesman. It is used here with permission.