November 9, 2022

Criminal Charges & Cannabis — it’s still ILLEGAL even if “everyone is doing it”

Cannabis is still illegal, even though you can buy it everywhere and everyone is doing it.

Hey, I’m Morgan Davis. I’m an attorney focused on cannabis and business in North Carolina. Let’s talk about how to keep your business protected and thriving. 37 states have medical cannabis programs. 19 states have recreational cannabis programs, and with e-commerce, pretty much anybody anywhere in the United States can get their hands on a high THC cannabis product. We know that anything below the 0.3% THC threshold is considered hemp and federally legal, but anything above that threshold is still federally illegal, yet it seems to be everywhere. And the fact that it seems to be everywhere and it’s so easy to get your hands on, gives people this comfort and this idea that it’s no longer illegal, or even if it is illegal, it’s not a big deal.

But that is not true.

Above 0.3% THC or high thc. Cannabis is federally illegal, and it’s a schedule one substance. It’s the highest schedule technically in the Controlled Substances Act, reserved for the most dangerous and most addictive drugs.

We can debate that that’s not true for high THC cannabis. I don’t think it’s true for high THC cannabis, and it should be descheduled, but that’s not where we are yet. And so getting arrested and or convicted for possession of high THC cannabis, whether you’re at the state or federal level, can result in anything from a fine to prison time. In fact, arrests and seizures for cannabis related offenses on the federal level were the highest they’ve been in a decade in 2021. So even with what we would consider mass legalization on a state by state basis in the United States, at some level, arrest and seizures are increasing, not decreasing. The media talks all the time about new countries and new states that are legalizing and what’s coming up. And it goes further to give the public an idea that it’s safe to consume cannabis or high THC cannabis anywhere you want.

Look at the case of Brittney Griner

A WNBA basketball player, an Olympic medalist. She’s doing work off season in Russia. She’s been doing it for years. Packs her bag, gets there, and she’s arrested for trafficking in narcotics. And what was she trafficking? Some cannabis vape cartridges probably that she uses regularly. Something that most of us in the United States would now consider pretty minimal. Complete simple mistake that probably a lot of you listening have made and thinking, well, it doesn’t matter if I get stopped, it’s not gonna be a big deal. Last month, she was sentenced to nine years in a Russian prison. And while we’re all hoping that she’s they’re going to be able to negotiate something and she’s going to come home. She’s been there for almost a year now.

Cannabis in Thailand

I was asked recently to comment for an article about the recent legalization of cannabis in Thailand.
And the gist of the article was that it’s all good in Thailand. Now you can travel there, you can smoke there, you can consume cannabis there, no problem. Except the Thai government was being very clear that they were not encouraging foreigners to come into the country and consume cannabis. And that anybody who was gonna do that and would be caught would be punished under criminal statutes. So I couldn’t comment that way.

Cannabis in North Carolina

In North Carolina, high THC remains illegal, both medically and recreationally. While we have a medical bill that’s passed the Senate and is sitting in the house, which you can go see one of my other videos for that, a recent decision in the court of appeals is troubling. The Court of Appeals upheld a man’s conviction for possession with intent to sell and deliver THC. And while there are lots of issues in the opinion that we can talk about, what I want to point out here when we’re talking about criminal liability is that the court upheld it based on the idea that all THC is illegal.

When the defendant argued that the difference between hemp, federally legal hemp, below the 0.3%, THC limit and high THC cannabis was not proven by the state, and that it should be because hemp was now legal: the court rejected that argument and said that because it was a brown material, the defendant did not make an argument that he was a licensed grower, or that it had been obtained from a licensed grower, therefore, it was illegal, no requirement of showing the THC limit. Now granted, this was under the the 2015 North Carolina Industrial He Act, which no longer applies from June, 2022. So you might say, what does it matter? North Carolina has no statute of limitations for felonies, and they have a two year statute of limitations for misdemeanors. So ask yourself this. Have you possessed a THC product in the state of North Carolina within the last seven years?

Are you a licensed grower? Was it from a licensed grower? Was it flour? Because if the answer to those questions is no, then under this ruling, you may be guilty of a felony, you might be guilty of a misdemeanor, and the state can still come after you. And if you’re a company that’s been producing those products, then under this current ruling, if your products aren’t flour, you’re not a licensed grower and it didn’t come from a licensed grower and it’s a THC product, it’s illegal. Don’t make the mistake of thinking that because something is readily available or that because everyone’s doing it, that it’s legal. Criminal liability in cannabis is still very much a reality. Know the law, understand your exposure and avoid arrest. But if you get arrested, call me. I’m going to help you out.

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