Osage County District Attorney Mike Fisher cited a complete set of test results as reason to keep prosecuting two hemp security officers for marijuana trafficking, but the college performing the analyses says it isn’t finished.
Fisher on Friday told reporters “all 60 samples in the truck were tested” by a college in Oklahoma and that is what he relied upon in making his decision to continue. However, a Redlands Community College spokeswoman on Tuesday told the Tulsa World that its tests of the plant material weren’t complete.
Redlands Community College in El Reno has its own industrial hemp pilot project.
“We were asked by Osage and Pawnee counties DA Mike Fisher to conduct testing on the shipment,” wrote Dayna Rowe, director of public communications and marketing for Redlands. “That testing is not complete yet. Once we finish, we will turn the findings over to the DA.”
That statement is contrary to what Fisher said Friday after a court hearing in which he dropped aggravated drug trafficking charges against the truck’s two drivers but remained steadfast on prosecution of the security officers.
In a statement Tuesday to the Tulsa World, Fisher said there is no discrepancy in comments made by himself and Redlands.
“They verbally provided my office their preliminary findings which indicate that several of the samples came back above 1 percent THC,” Fisher wrote. “The weight of those boxes in which the samples tested at 1 percent or more exceeds 1,000 pounds.
“Redlands also informed me that they still have several samples to test and expect those to be done within the next week.”
He said that the college was chosen to conduct the tests because it can determine THC percentages, whereas the Oklahoma State Bureau of Investigation is unable to do so.
Redlands declined a Tulsa World open records request to provide the test results upon completion, citing their part in a criminal investigation.
Fisher and the District Attorney’s Office generally have been mum on their justification for aggravated marijuana trafficking charges, which carry a sentence of at least 15 years to life in prison.
But Fisher opened up on Monday during “The Pat Campbell Show,” a conservative talk show that airs on Tulsa radio station KFAQ.
Federal and state laws provide support for handling the situation outside of criminal court, according to a previous Tulsa World analysis of relevant laws. And the unresolved situation has exposed how unprepared Oklahoma — and probably other states — is for legal industrial hemp.
Federal law bars criminal action against hemp growers found to be in violation. Oklahoma law only requires destruction of the non-compliant crop and offers an option for civil fines or penalties.
The 2018 Farm Bill — which legalized industrial hemp — also explicitly states that nothing in it prohibits the interstate commerce of hemp or hemp products. It further says that no state or Native American tribe shall prohibit the transport of those items.
As far as potential violations, transport personnel aren’t addressed in either state or federal laws.
Fisher, on the radio program Monday, acknowledged the 2018 Farm Bill offers no guidance on transportation of industrial hemp.
Fisher then extrapolated his interpretation of the intent of state and federal laws.
“But if you take the Farm Bill to its logical conclusion, if the grower is required to destroy it and they haven’t done so, and in fact they transport it and the levels are above what the federal government says is marijuana, then it has to be prosecuted as marijuana,” Fisher said. “In the state of Oklahoma, if you have 1,000 pounds or more of marijuana you’re considered as being in possession of trafficking-weight marijuana.”
Defense attorney Matt Lyons responded that he doesn’t believe Fisher understands the difficulties in growing cannabis to have a THC level at three-tenths of a percent or less.
“What Mike is refusing to do is acknowledge there’s such a thing as non-compliant hemp, and that it’s been taken into consideration in Oklahoma and federal law,” Lyons said.
Fisher reiterated on the radio show that all 60 samples from the truck’s 60 boxes were tested by Redlands, with “several” that came back not just above three-tenths of a percent limit for hemp but over 1 percent.
“I don’t know the exact number that have been tested but we know that we currently have in excess of 3,000 pounds that tested at 0.5 percent or higher,” Fisher told the Tulsa World, adding that he only is considering samples of at least a half percent to avoid questions about testing margins of error.
Prosecutors originally alleged there was 20,500 pounds of marijuana in the shipment. Documentation provided by the defendants listed 17,200 pounds of hemp.
Defense attorneys contend the security officers — who founded Patriot Shield, a veteran business that protects industrial hemp shipments — before transport were provided proper documentation and test results from the state of Kentucky certifying the product as legal hemp.
Fisher, on the radio, said “there’s not doubt” that it’s “not good quality marijuana” that was being transported, given its relatively low THC content.
“We believe the evidence at trial will point to the fact that they knew it wasn’t hemp,” Fisher said.
Lyons said he is confident the two security officers — Andrew Ross and David Dirksen — believed the cargo was hemp. Did his clients have concern that some samples might test over the legal threshold as law enforcement unloaded the truck on Jan. 9 in Pawhuska, given the complications in achieving such a low THC level? Absolutely, he said.
“But concern doesn’t equal criminal culpability,” Lyons said.