Can You Get a DWAI from CBD Oil?
23 Nov 2019
The cannabis plant has been an integral part of civilization for thousands of years. Throughout recorded history, hemp has been cultivated and used for textile purposes as well as a food source and marijuana for its medicinal and recreational qualities. It is only in relatively recent history that the cannabis plant became criminalized, not based on any scientific evidence but solely for political reasons.
The Distinction Between Hemp and Marijuana
The criminalization of cannabis made no distinction between marijuana containing large amounts of the psychoactive cannabinoid THC, and hemp, which contains only trace amounts of THC but contains the full spectrum of cannabinoids found in the plant. Recent scientific research supporting the medical benefits of cannabis has caused a shift in public perception as well as the legal status of the plant.
The 2018 Farm Bill and Hemp Act not only provided necessary agricultural and nutritional policy extensions but also changed the legal status of industrial hemp, which has a THC content of less than 0.3%. This new legislation enables farmers to grow hemp as a cash crop once again. Industrial hemp has many uses, but one of the most notable is in the production of CBD, the second most well-known cannabinoid found in cannabis.
Unlike THC, CBD has no psychoactive properties but has become popular because of growing evidence of its use as a treatment for many medical conditions. While society and the legal community have a new outlook on cannabis and the legal distinction between hemp and marijuana now exists, the situation has created a dilemma for law enforcement officers and patients in states where marijuana is still illegal.
Law Enforcement Field Tests for Cannabis
Since the enactment of the 2018 Farm Bill, farmers have planted thousands of acres of industrial hemp, and products containing CBD derived from hemp have entered the market. Hemp-derived CBD is available in a wide range of products such as oils, lotions, and supplements. It is also available in flower form, which is nearly identical in look, smell, and texture, to marijuana. Some of these products contain low levels of THC, less than the legal limit of 0.3%, while others contain only pure laboratory tested CBD extract.
While research into the benefits of both hemp and marijuana has increased in recent years, the testing protocols used by law enforcement agencies have lagged. Current field tests used by police officers cannot differentiate between a legal hemp product containing less than 0.3% of THC and illegal marijuana that may contain THC levels as high as 20% and more.
Most field tests are designed to test for cannabinoids found in the cannabis sativa plant. Still, they are not able to differentiate between products that contain high levels of THC and those that contain none or under the legal limit. Additionally, many of the more comprehensive laboratory tests used by law enforcement agencies only test for the presence of THC and not the amount present.
The Legal Dilemma
The inability of law enforcement to be able to determine whether a product is hemp, a legal form of cannabis, or it's more infamous counterpart marijuana, has created legal dilemmas for both individuals as well as business owners. In Washington DC, where it is legal to possess small quantities of marijuana but not to sell it, an individual narrowly escaped arrest when the CBD products, containing no THC, were field-tested by police officers and came back positive for cannabis. Retail stores distributing legal CBD oil have also been a target for undercover police investigations because the legal products they sold looked suspiciously like marijuana.
In November of 2019, the New York City police department bragged on twitter that their officers working with FedEx and other law enforcement agencies had confiscated "106 pounds of marijuana that was destined for our city streets." Although the owner of the suspected marijuana had documentation proving that the shipment was hemp and contained only trace amounts of THC, he was arrested and thrust into the legal system until laboratory testing can confirm that the shipment was legal hemp.
While hemp-derived CBD is legal throughout the country and many people are finding it to be beneficial in treating a variety of ailments, police departments are still unable to differentiate between hemp and marijuana with their existing testing protocols. The inability to determine the amount of THC that a product contains will continue to cause individuals to be falsely arrested and forced to deal with the legal and financial repercussions arrest involves until the development and implementation of new testing protocols.