Judge tosses marijuana charge for man who legally purchased CBD product

NBC12 obtained a copy of the hearing transcript, which includes the witness telling the judge...
NBC12 obtained a copy of the hearing transcript, which includes the witness telling the judge he could not tell if the product was purchased legally. (Source: NBC12)(WHSV)
Published: Oct. 22, 2019 at 2:32 PM EDT
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A Hanover County judge tossed a marijuana case after the state lab told him it can’t tell the difference between real pot and CBD products Virginians can legally buy at gas stations.

A Louisa County man was charged with having marijuana, even though he legally bought a CBD product at a store in Charlottesville. They call it hemp flower, and it’s being sold in stores and gas stations across the state.

It looks a lot like illegal marijuana.

Robert Mason never thought a fun day-trip to a local amusement park could end so badly.

“I’m going to King’s Dominion with my sister, and on the way home, she gets pulled over for speeding."

But that routine traffic stop in Hanover County quickly escalated when the sheriff’s deputy said he smelled marijuana.

“That’s when I tell him that I have this CBD, and I actually hand it to him along with everything, which was a bowl, a grinder and the hemp product,” said Mason.

The officer field tested it, and it tested positive for marijuana. But Mason bought the CBD product legally at a store in Charlottesville. He even handed the deputy a receipt.

“There’s nothing illegal. My sister is freaking out. I told her look, ‘we’re good. I purchased it at a store. I have the receipt. Everything is cool.’ Turns out, it wasn’t,” said Mason. "His specific words was (sic), ‘it looks like a duck, it sounds like a duck, it’s a duck.’”

The officer didn’t arrest him, but ticketed the 24-year-old for possession of marijuana.

Mason tried to argue.

“I tried to argue; I told him I had the receipt,” said Mason.

And those receipts are easy to come by.

Anyone can go into stores throughout parts of Virginia and see that they openly sell hemp flower. It looks like pot, but it’s considered industrialized hemp. It was

through the Farm Bill that was signed by President Donald Trump in December. Virginia lawmakers followed suit, passing emergency legislation on March 21, 2019.

According to the

, hemp products are allowed to have up to .3 percent of THC, the chemical in cannabis plants that produces a high.

But police currently don’t have a field test that can tell the difference between legally possessed hemp and illegal marijuana. And according to a memo from the Virginia Department of Forensic Science, it also currently can’t test how much THC is in a product. It could find if there’s more than .1 percent, but it can’t test the exact level.

“I’m not sure that the prosecutors and law enforcement is equipped to deal with this issue right now,” said Jay Breneman, the defense attorney on Mason’s case.

Breneman has been a lawyer for more than 11 years now, and has handled countless marijuana cases.

“It could just look like a bag of the same things people have been prosecuted for years and years,” said Breneman.

When Robert Mason showed up at his Ashland office, Breneman had a lot of questions, especially after he started researching the emergency legislation enacted by Virginia and comparing that to what the state lab was saying publicly.

“I had serious questions - still have serious questions - about how the prosecution, how law enforcement can go forward on just about any marijuana case,” said Breneman after reading that the state lab currently can’t determine exactly how much THC is in a product.

A document provided by the store that sold the hemp flower to Mason shows a level of .28 percent, which Breneman pointed out is under that legal limit.

But again, neither police or state labs can test to verify that information.

In September, Breneman took Mason’s case to Hanover County Circuit Court. He had already been convicted in General District Court, and Breneman appealed the case to Circuit Court.

During the hearing, Breneman called the person who tested Mason’s hemp to the stand - a supervisor in the state’s Richmond lab.

“You can’t tell whether this was purchased at the service station down the road?” asked Judge Overton Harris.

“No, your Honor, I could not," he responded.

“(The judge) looked at the prosecution and myself, and back and said, ‘not guilty,’” said Breneman, which the transcript confirmed.

The judge’s decision was a major victory for Robert Mason, who faced jail time.

“I almost had time over my head for carrying something legally," said Mason.

The state lab says it’s working on a way around this issue. According to the court transcript, the lab is close to a potential solution for testing the levels of THC.

But until then, simple marijuana cases in the commonwealth may not hold up in court.