Personal Rights When Arrested for Legal Cannabis Possession- Guest Post

Given hemp’s resemblance to marijuana it is important to know your legal rights when carrying it.

Hemp is a fast-growing business in the US. CBD oil, hemp cigarettes, and hemp flowers are growing in popularity. However, in this thriving business lays a bit of a sticking point, namely, the fact that hemp is the plant cannabis sativa l. This is the same plant as marijuana but with significantly reduced levels of delta-9 THC. As such, hemp producers, transporters, and sellers may run across problems with law enforcement due to their lack of education, or a misapprehension that the plant in question is marijuana. This can sometimes lead to arrest. Here’s what you need to know about your legal rights when you are in possession of hemp but approached or arrested for marijuana.

Legality of Industrial Hemp Possession

Since passage of the 2014 Farm Act, at least 41 states considered industrial hemp legislation. Bills and laws differ by state. Some states allow for “cultivation of hemp for commercial, research or pilot programs” while others outright forbid it. For example, North Carolina allows hemp cultivation and sale by private parties. Additionally, in the wake of the recent passage of the 2018 Farm Bill, “hemp” is broadly legal across the US. 

Under federal law and the laws of most states, delta-9 THC concentrations must not exceed three tenths of one percent (0.3%) on a dry weight basis. Some states also require the hemp plants to be possessed by a licensed grower in order to be labelled industrial hemp.

Legality of Marijuana Possession

Marijuana is the single most commonly used illicit drug. According to a national drug use survey completed by the Substance Abuse and Mental Health Services Administration (SAMHSA) and Department of Health and Human Resources (HHS), over 22.2 million people use it every month.

Despite its rampant use, marijuana remains illegal at the federal level. Additionally, laws between states vary significantly. Currently, adult (sometimes called “recreational”) use of marijuana is legal in 10 states and two territories. Another 13 states and one territory having decriminalized it.

The discrepancies between marijuana’s legal, illegal, and decriminalized status can cause significant problems for people who drive legal industrial hemp biomass and flowers across state boundaries. When marijuana is legal in one state, but illegal or decriminalized in another, misunderstandings and even arrests can happen if law enforcement officers believe the hemp is marijuana.

Personal Rights When Industrial Hemp Is Confused for Marijuana

Hemp flower looks, smells, smokes, and vapes just like marijuana. For those transporting commercial hemp products, there is always a chance of confusion with marijuana and marijuana products. Their similarities make hemp transport and use potentially confusing for law enforcement officials to differentiate. Seizures and even arrests may occur for those carrying lawful industrial hemp.

This means that if you are lawfully in possession of industrial hemp and are arrested for illegal marijuana possession, you have personal rights to fight against the arrest. Laws vary by state.

Dos and Don’ts When Wrongly Approached or Arrested

Do remain calm. Any sort of escalation on your part could be seen as antagonistic or uncooperative. Make sure to answer all of the officer’s questions in a thorough and non-defensive way.

Don’t act defensively. It’s human nature to be defensive when we know we’re in the right, but in this case, try to control and suppress that urge. The quicker both sides can see the truth — that you’re carrying legal hemp — then the sooner you can part ways.

Do state the facts. If you’re carrying legal hemp in the form of CBD oil, hemp cigarettes, or hemp flowers then realize the officers may have made an honest mistake in approaching you. If you have a short, prepared response it may be helpful to inform the officer of the differences between hemp and cannabis. Also, provide copies of documentation you may have regarding industrial hemp.

Do try to remember as much as you can and be aware of your surroundings. Look at the names of the officers. Also, note the time, the surrounding shops that are open, and any pedestrians walking by.

Do have the name and number of a lawyer that you can contact.

Do you have questions about carrying industrial hemp? Have you been falsely approached or arrested do to a misunderstanding? Contact an experienced attorney today to learn more about industrial hemp law, your rights to carry it and aid in the case of false arrest or imprisonment.


Congressional Research Service, “Hemp as an Agricultural Commodity”

Federal Register, “Statement of Principles on Industrial Hemp”

Jackson White Attorneys at Law, “Knowing Arizona’s marijuana laws is the first step to the best legal defense”

National Conference of State Legislatures, “State Industrial Hemp Statutes”

Substance Abuse and Mental Health Services Administration, “Results from the 2015 National Survey on Drug Use and Health: Detailed Tables”

December 30, 2018

This is a guest post by Liz S. Coyle is the Director of Client Services for JacksonWhite Attorneys at Law. She also serves as a paralegal for the Family Law Department. She is responsible for internal and external communications for the firm.

Rod Kight is an attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.

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