LINCOLN — Marijuana users have been getting a pass in some Nebraska counties as prosecutors declined to charge low-level possession cases because of an inability to prove what’s illegal marijuana as opposed to legal hemp.
But the reprieve may not last much longer.
An official with the University of Nebraska Medical Center said Friday that within three weeks, its crime lab should be able to test and determine the difference, clearing the way for prosecutions to resume.
Douglas County Attorney Don Kleine, whose office uses the UNMC lab, said that means business as usual in the state’s largest county.
In Lancaster County, one of several counties that have stopped filing criminal charges for possession of small amounts of marijuana, a prosecutor said his office will begin reviewing whether to file the charges as soon as tests are available. At least three of the cases to be reviewed for possible prosecution involve Nebraska football players.
“At some time in the future, assuming that we are able to get the test done that quantifies the level of THC and assuming that the cost to get that test is reasonable, then we would consider revisiting those tickets,” said Bruce Prenda, the chief deputy Lancaster County attorney.
Complications and confusion began on May 30, when a new state law allowing farmers to grow industrial hemp — a look-alike, smell-alike cousin to high-inducing marijuana — was signed into law by Gov. Pete Ricketts. The law defined industrial hemp as cannabis with less than 0.3% THC, the chemical that makes people high.
But the new law presented a problem for prosecutors. Now, when they go to court, they have to prove — with a test — that the green, leafy weed found in someone’s pocket or car is above the 0.3% threshold and indeed illegal marijuana.
But Nebraska currently does not have a crime lab with the capability to discern THC levels. And hiring out-of-state labs for the testing — and paying a lab technician to come to Nebraska to testify in court — was deemed too costly, given the $300 fine possible for possession of less than an ounce of marijuana.
The problem has caused greater complications in some other states, like Ohio and Texas, where some marijuana charges have been dismissed by judges.
Nebraska prosecutors have continued to file charges in felony marijuana possession and distribution cases, saying that the cost of testing is warranted for such serious offenses.
Interviews with several county prosecutors across Nebraska provided a variety of strategies for dealing with the current dilemma involving low-level possession cases.
Some said they were delaying criminal charges until the crime labs in the state — UNMC, the Nebraska State Patrol and Douglas County — are able to provide the THC tests. Others said they’d use other means and evidence to prosecute the cases. At least a couple said they hadn’t had to consider yet what to do.
Suspects often incriminate themselves by admitting that they have illegal marijuana. Kleine, the Douglas County prosecutor, said he was prepared to file charges using a state law that requires anyone transporting hemp to carry a state “bill of lading.” If a person isn’t carrying the document, that would lead to a criminal charge, he said.
But one defense attorney said that right now, if one of his clients wanted to push it and require a prosecutor to present a test proving that any cannabis seized was illegal, it would result in dismissal of the case or a not-guilty verdict.
“If you put up your fists, I don’t see how they’d lose,” said Russ Jones, a North Platte lawyer.
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It’s hard to tell how many marijuana prosecutions haven’t been pursued across the state. The State Patrol surveyed county prosecutors but declined, after a public records request, to reveal the results, saying the information is being used for training and tactical purposes.
But in Lancaster County, the state’s second-largest county, prosecution has been deferred in 37 cases involving possession of less than an ounce of marijuana or possession of drug paraphernalia, including cases involving Husker players Maurice Washington, Myles Farmer and Jeremiah Stovall.
Prenda said that charges weren’t filed in more than 90 other infraction-level marijuana cases because they involved other criminal offenses, such as minor in possession or drunken driving, that resulted in charges.
Lancaster County, which typically uses the State Patrol’s crime lab, has been in touch with UNMC about using its testing capabilities. A UNMC spokesman said the tests should cost about $75.
The patrol’s crime lab, which is used by most law enforcement agencies in the state, is roughly five to six months away from being able to validate and perform the THC tests, according to Col. John Bolduc, the patrol superintendent. It may cost $30,000 to get the lab set up to do the tests, he said.
“As with any new testing procedure, our scientists must work through a validation process to ensure that the test meets the needs associated with criminal investigations,” Bolduc said.
Prosecutors aren’t in a hurry. They have 18 months to decide whether to file charges in “infraction” cases, involving less than an ounce of marijuana, and in misdemeanor cases, involving less than a pound of marijuana. The statute of limitations in felony cases involving more than a pound is three years.
Prenda said that Lancaster County is exploring use of the UNMC lab, as well as one in Pennsylvania already certified for THC testing, for pending felony cases.
Meanwhile, it’s a waiting game for Nebraska’s labs to catch up.
“I know that county attorneys and lab personnel are working hard to advance the testing that can be done locally,” he said. “But until it’s readily available, we continue to make use of the testing resources that are available.”
I went to “church” on Sunday.
This church had no roof, just sky. It stretched for blocks, with old brick warehouses for walls. There were cocktails. We stayed for hours.
This wasn’t a real church, of course; it was the annual Hutchfest, a market of makers and creative types all preaching the same gospel: Create. Build. Sew. Paint. Craft. Cook. Mix. Print. Sing. Strum. Make.
And, of course, buy. Pilgrims, including yours truly, were drawn to this open-air, daylong market of the homemade and handcrafted, and the faithful bought.
“This is my church,” Cara David, a middle school teacher, a baseball mother, an avowed shopper and my friend since kindergarten, said as we inched along a stretch of North 11th Street that neither of us Omaha natives had ever stepped foot on. I nodded.
And this was before the strong mimosas.
We were just in awe of the Hutchfest scale — 305 vendors stretched along eight city blocks. And we loved the inventiveness, from sweet felt baby mobiles to drink coasters with words that could not be said in a real church or printed in a family newspaper. There was so much to see and touch. So much we didn’t know we needed.
Plus food. Restaurants like Block 16 and Saddle Creek Breakfast Club had booths. Coneflower Creamery looked as popular as it seems to be at its permanent home in the Blackstone District on Farnam Street. There were food trucks, there were bars and one of the most popular drinks was water. Church got hot.
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The experience wasn’t religious, but it felt transcendent because it offered so much discovery, principally of an interesting industrial neighborhood in north downtown.
Hutchfest is in its fourth year. It is organized by the owners of midtown furniture store Hutch. Hutch co-owner Nick Huff said the festival originated from a desire to give local vendors room and exposure beyond the four walls of his shop. The first Hutchfest was launched at Midtown Crossing in 2016 with 87 vendors. It then moved to a part of Omaha that is undergoing change, the New North Makerhood, roughly northeast of 14th and Nicholas Streets.
A “makerhood” can be an old, invisible and sometimes forlorn part of town that, when fueled by the energy and bonhomie of creative types, undergoes a natural evolution into something else: Something vital, something important, something that on Sunday made for a perfect backdrop.
I’d gotten the press release for Hutchfest and told my husband with as much stoicism as I could muster that I had to work on the weekend. Wah. Then I called some dear friends and fellow Omaha natives. The experience should be shared, though sharing it with small children and dogs — as many did — would probably limit how much time you could spend at this seven-hour event.
My three west Omaha buddies were so excited to come downtown that they beat me to the front Hutchfest gate at 11th and Nicholas Streets before the 10 a.m. opening time. Early birds got tote bags and koozies, and they were rewarded thusly.
Had we planned better, we would have bought advance tickets for $5 apiece. Instead, we paid $10 to get in. The positive vibe, cooler morning temperatures, live music and interesting scene made the door fee worth it. We appreciated that Hutch organizers didn’t squeeze vendor booths across from each other the way they are at farmers markets. Instead, the place had a good crowd without feeling crowded.
Our first stop was a tarot card reader. For $15 apiece, Paige Dempsey, a business and communications consultant, and Cara had their cards read. Among the messages were ones that proved prescient. Paige was wished safe travels. There are lots of ways to part with your money at a maker’s festival. Cara drew a card that said “focus,” which can be hard at an event that is such a kaleidoscope of things and people.
But all of us had the benefit of time. We weren’t dashing into a mall to buy a wedding gift or a pair of school shoes. We had come principally to be together. Secondarily was the cool setting. And the third purpose was chancing into something that caught our eyes or hearts. Shopping, which I personally hate, becomes a lot more tolerable when you don’t have anything you have to get. But you might find something magical for the sole purpose of: Just because.
Mother-daughter pair Mary and Megan Losee were back at Hutchfest for the magic.
“It’s different stuff you’re not going to find in a store,” Mary Losee said. “Whatever trips your trigger.”
Evynne Doue, an Omaha designer, was among the shoppers but said she appreciated what the event does for the makers and for Omaha. Hutchfest, she said, is another opportunity for the city to show a different side of itself and reveal the vibrancy that exists here. She said Omaha’s got a growing creative class, which is attractive to young people like her friends, who are beginning to move back to Omaha after living elsewhere.
“We have a very strong creative community and a very strong ‘local-supports-local’ (attitude),” said Doue, 25.
Louise Jones, 25, is a designer for a company called Leo & Wren. After I purchased an $8 print that plays off Omaha’s name — “Homaha” — she told me that Hutchfest offers important exposure to small businesses like hers.
Jason Gilbreath of Reclaimed Enterprises, a company that makes custom furniture from repurposed barn, gym floor and other wood, said the event is good for makers. Last year’s Hutchfest drew more than 2,000 people to his showroom.
By 3 p.m., two hours before the 5 p.m. closing time, Huff said the gate count was 12,000 people. He said the crowd is proof of this: People want to support local, small businesses; the Midwest has a lot of local talent to draw crowds; and at the end of the day, shoppers want an experience that is one of a kind. Handmade counts.
Paige, who loves to travel, said Hutchfest made her feel like she had left Omaha.
“It feels like a getaway. Without having to go too far,” she said.
Jean Pedersen, a mother of four sons, called the experience “sensory overload.” In a good way.
Cara felt the way I did: If only we had MORE time. Three hours didn’t fully cut it.
We didn’t leave church empty-handed. I bought a T-shirt, a coffee mug and a pennant, and might be getting a new dining room table. One maker was offering a steep discount for Hutchfest orders. I gave him the dimensions and style I wanted and am awaiting the bid.
Meanwhile, my friends similarly were pleased. Jean Pedersen got a gold necklace. Cara got two pairs of earrings, and immediately put one pair on. Paige bought a coffee mug with the Sunday sermon. It says: Keep Creating.
Within days, Alexander Mitchell had gone from being a 20-year-old hiking enthusiast to being kept alive by two machines forcing air into and out of his lungs and oxygenating his blood outside his body.
"He went from being sick to being on death's door in literally two days," recalled his father, Daniel Mitchell, as he struggled to grasp the unthinkable. "The doctor said he was dying. In all honesty, I was preparing to plan a funeral for my child. I wept and wept for this boy."
Alexander Mitchell's doctors at a hospital in Payson, Utah, were baffled when the tests came back negative for bacterial pneumonia and a host of common ailments. One exam, though, picked up something unusual — evidence of abnormal immune cells in his lungs — generally associated with a rare, potentially deadly pneumonia seen in older people who accidentally inhale droplets from oil-based laxatives like mineral oil.
A doctor's hunch would help save Mitchell's life. The young man's lungs had failed — he had acute respiratory distress syndrome, a life-threatening and often fatal injury of the lungs. The doctor told the family that he suspected the condition was linked to vaping after hearing about similar cases elsewhere. The Provo, Utah, man and his parents had mentioned that he used e-cigarettes. But until then, no one had connected the dots. Doctors had him airlifted to the University of Utah hospital in Salt Lake City, 65 miles away, so they could put him on the most advanced life support to keep oxygen flowing and allow his lungs to heal.
Mitchell's case is among the most serious doctors have seen among the vaping-related lung illnesses now under investigation by state and federal health officials — at least 193 cases in 22 states, many involving teens and young adults. On Aug. 23, Illinois health officials announced the first known death from a vaping-related lung illness in an adult. Meanwhile, state health departments are reporting a growing number of cases.
There are more questions than answers about the lung illnesses and their link to devices that have surged in popularity despite little research on their long-term effects. E-cigarettes were introduced as a way to help smokers quit by satisfying their nicotine cravings without lighting up, but their use is now at epidemic levels among teenagers and young adults.
Those who have fallen ill have vaped different substances, including nicotine, marijuana-based products and do-it-yourself "home brews" over different durations and in different places. Although the cases appear similar, officials from the Centers for Disease Control and Prevention caution they don't know whether the illnesses are associated with the e-cigarette devices themselves or with specific ingredients or contaminants inhaled through them.
The severity of some of the illnesses in previously healthy young people has unnerved family members and even some doctors.
"To see patients this sick, this is extremely alarming," said Sean Callahan, a University of Utah pulmonologist.
Alexander Mitchell thought he had the flu when he woke up this summer with severe nausea, chest pain and trouble breathing. But he deteriorated so quickly that his parents, and then even the doctors, were astonished.
For his parents, the scariest moment may have come when doctors said their son's lung failure required an additional aggressive life support machine known as ECMO. The machine pumps blood from the patient's body to an artificial lung that adds oxygen and removes carbon dioxide, replacing the function of the person's own lungs. The machine then sends the blood back to the patient.
"He had two tubes coming out of him, one was dark crimson red, and the other was bright red," Daniel Mitchell recalled. "The doctors said a third of his blood was out of his system at any one time."
If Alexander pulled out his tubes, they warned his parents, "he would be dead in 30 seconds and there was nothing we could do."
Doctors told the parents that he might need a lung transplant. But after about nine days, the life support machines allowed his lungs to heal. He was able to go home July 7.
The University of Utah doctors who saw Mitchell, in addition to four similar cases this summer, have their own theory about what might be causing the vaping-related illnesses.
They say one culprit may be the liquid, commonly known as vape juice, that is a component of all e-cigarettes. The products vary greatly, but all contain a heating element that produces an aerosol from a liquid that users inhale through a mouthpiece.
The surge in cases may be the result of something recently added to the oils "to dilute or add to them," said Scott Aberegg, a University of Utah hospital pulmonologist and critical care specialist, who cared for Mitchell and four other patients at his hospital and consulted on two others at another facility.
Some of the patients had vaped for months and years, he said, so if there had been a previous cluster of cases, "we would have recognized it earlier."
Tracing the vaping liquid back to where it was purchased, however, has been difficult in some cases. Some patients said they bought ingredient-containing cartridges in other states. One patient told doctors that he got his cartridges in Las Vegas and it appeared they had been opened, presumably to introduce THC, the main ingredient that produces the mind-altering effects of marijuana, Aberegg said. THC is not legal in Utah.
Vaping liquid may contain nicotine, flavorings, propylene glycol, vegetable glycerin and other ingredients, according to the Food and Drug Administration, which regulates tobacco products, including e-cigarettes.
When the liquid is heated, the resulting aerosol can contain fine and ultrafine toxic particles, including heavy metals; chemicals used for flavoring, such as diacetyl, linked to a serious lung disease known as "popcorn lung"; and volatile organic compounds that can cause long-term health effects, including cancer, according to a 2016 U.S. surgeon general report.
"We don't know if it's the propylene glycol or the glycerin or other additives in the vaping liquids put there by the manufacturers, or those things in combination with other adulterants, post-manufacturing, when people are adding or mixing them," Aberegg said.
Some of the Utah patients had milder illnesses than Mitchell's. But four of the five also had abnormal immune cells in their lung specimens, Aberegg said. Such cells are indicators of a variety of diseases, including a rare condition known as lipoid pneumonia, whose symptoms include chest pain and difficulty breathing — similar to the symptoms of bacterial pneumonia.
Aberegg cautioned that much remains unknown about what causes the abnormal immune cells in those with vaping-related illness.
However, Aberegg said, the abnormal cells may be a "very important marker of vaping-related pneumonia" and "an important clue to what's going on."
Six weeks after he left the hospital, Mitchell has resumed hiking. But with his lung capacity diminished by 25%, he doesn't go for as long or as often as he used to. He also struggles with his short-term memory. Doctors say they're not sure whether he will fully recover.
There were too many kittens in the animal shelter, just as there had been last year and the year before that. Like other shelters that swell to capacity during cats' annual breeding season, Muncie Animal Shelter in Indiana was struggling this summer to meet the need.
"One day I was standing by the counter and somebody brought in six kittens," said Officer Chase Winkle, a spokesman for the Muncie Police Department. "And before they could get those checked in, somebody came in with another four."
To ease the pressure, police created a trade-off: For five days in July, people could pay for their parking tickets by donating to the shelter the equivalent value of cat food or litter. Residents who brought their donations to the police chief's office with a receipt proving the value got their tickets wiped away. A police officer's daughter works at the shelter and had made the department aware of the organization's need.
Muncie is among cities across the country that are opting temporarily to accept charitable donations in lieu of monetary payments for parking infractions. From Anchorage, Alaska, to Woodstock, Virginia, municipalities are writing off tickets in exchange for school supplies or cat litter — a way to fill a community need while lessening the sting of getting a ticket. Some cities offer a discount to people who pay with a donation, while choosing the donation option in other municipalities simply allows the payer to feel good.
In Muncie, about a dozen people made donations to pay for roughly $600 in parking tickets, Winkle said. Only offenses that didn't pose a safety hazard counted: Donations couldn't resolve a moving violation or a ticket for parking in a handicap spot. Most tickets that people paid with donations were worth about $25 each and had been issued for parking too long in a certain zone, Winkle said.
The initiative generated buzz beyond people who used the program to pay for their tickets, Winkle said, and it inspired residents without parking infractions to donate. If someone couldn't get to the police department or the shelter, the department sent a uniformed car to pick up their contribution. People across the country sent supplies, Winkle said, and other cities called Muncie police to ask how they had run their program.
The city's animal shelter has recently been housing about 350 cats and kittens, which causes them to use 50 bags of litter in a week, said Ashley Honeycutt, the shelter's office manager. Donations from the parking ticket program alleviated some of the burden, Honeycutt said.
"Your resources really just dwindle pretty quickly. ... It was a strain off of our back to not have to worry about it," she said.
Pencils and Post-it notes are now parking ticket currency in Las Vegas, where drivers can donate new, unwrapped school supplies that will go to a nonprofit group associated with the city's education foundation.
"Nobody likes to get a parking ticket," city spokesman Jace Radke said. "But if you can pay it forward and give a donation of school supplies that will help somebody, it kind of makes it less bad."
As in Muncie, the option to pay a Las Vegas ticket with a donation applied only to citations that do not involve safety threats. A donation can resolve a meter violation, for example, but not a ticket for parking in a fire lane. Public safety violations are more serious than other parking tickets, Radke said, and come with higher fines and the possibility of court proceedings.
Las Vegas has been periodically accepting in-kind donations as payment for parking tickets since 2016, when the City Council authorized the occasional programs. The city usually runs one donation initiative each year, Radke said, because the programs cost the municipal government the fines they would otherwise receive.
Two hundred pencils or 100 pens will make up for a $20 parking ticket in Anchorage. The cost of those supplies totals about $10 and Anchorage subsidizes the remaining $10 of each ticket, said Demetric Tuggle, parking director at the city-operated EasyPark Alaska.
As Alaska's government faces significant budget cuts, including to education, Tuggle said that Easy Park wanted to make up for lost resources. About 25 people have donated supplies to fill four bins, she said.
Greensboro, North Carolina, typically writes about $85,000 worth of citations in August and expected to lose an unknown portion of that revenue when some people used school supplies to resolve their tickets that month, said Stephen Carter, business and parking manager for the city's transportation department. That loss of funds is worth it, Carter said, to pay some of the classroom costs that typically come out of teachers' pockets.
Inspired by the Las Vegas program, Olathe, Kansas, ran an initiative in which school supplies worth half the cost of a parking ticket would wipe away the citation. The colored pencils, glue sticks and other supplies collected through Aug. 16 in exchange for tickets worth up to $100 per person went to the city's public schools foundation, city spokeswoman Erin Vader said.
"It's reached people that don't even have a parking ticket to pay," Vader said. "They just want to do good."