There is a form of mass spectrometry (chromatic) which has not been sufficiently vetted – studies, publication, peer review – to satisfy Daubert and TRE 702, 705 that can be used to employ quantitative total weight testing sufficient to establish that the threshold concentration of the plant matter (cannabis and hemp being the same plant) is of a sufficient percentage of the total plant matter weight to meet the statutory percentage prohibition. In other words — to prove it is marijuana and not hemp.
Bexar County appears to have a lab with that setup. It is not clear any other DPS lab has it. Again, even if they do, it is challengeable as to admissibility. Also, this testing is costly to administer and promises an appellate ordeal for the State, if pursued. For that reason, personal use amount marijuana prosecutions should be deemed dead in the water and set for trial.
If you get a DPS lab analysis report that states ‘contains marihuana’ it is on its face insufficient. You can move for a toxicologist expert, have the hearing and put this on the record, and see if the court wants to pay to allow the State’s silly prosecution to go forward. The tox will possibly also send the evidence to NMS Labs for retesting.
Gilbert Garcia, Board Certified Criminal Defense Attorney
