We spoke to a couple of Texas cannabis attorneys to find out. They offered some pretty helpful, and simple, advice.
Hemp was legalized federally in 2018 with the Farm Bill. Texas followed suit with its House Bill 1325. Both pieces of legislation defined hemp identically. Under the laws, cannabis with 0.3% delta-9 THC or less is considered legal hemp. Cannabis with more than 0.3% delta-9 THC is considered illegal marijuana. Delta-9 THC is the chief psychoactive component in weed that gets users high.
Since these laws were passed, an industry of psychoactive hemp products has sprouted across the country. These products include delta-8 and delta-10, different forms of THC, and THCa, all of which can be found on store shelves all throughout Texas.
First of all, make sure you’re not driving under the influence, cannabis attorney David Sergi said. As mentioned earlier, some of the best advice is painfully simple. You’re not exactly ready to build the best defense for yourself if you’re drunk or high behind the wheel. You’ll also want to be sure to grab your receipt from the cashier at the hemp shop before you leave – this way, your purchase is documented. Every hemp product you buy should come with a QR code that leads to the lab report that should show the product is compliant with state and federal law. Be sure you have access to the lab reports for the products you buy.
So, if you have followed the advice so far, you’re not drunk or high and you've simply made your purchase at the local hemp shop. You have your receipt and you have access to the lab reports for the product. But what do you do if you get pulled over on your way home?
If the cop finds your hemp product, and you decide to not answer any questions, you’ll likely be arrested, Sergi said. From the moment the officer asks you about the hemp product, you should be thinking about building your defense, all of which, ideally, will be captured by a body camera.
“I think performing for the camera and saying ‘Look at the QR code. Here’s my receipt. This is a legal delta-8 product or a legal product I purchased from this store and cut it off there,’” Sergi said. He’s had several clients end up in this situation. They were smart enough to tell the officers what they had was legal, show them their receipt and direct them to the QR code so they could see the lab reports. A couple of them got tickets. One got arrested. But none of the charges have stuck, Sergi said.“Remember, you’re performing for a camera that will eventually wind up in a DA’s office." – David Sergi, attorney
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“You have every right to be silent,” he said. “The problem is, it’s my estimation that the truth will set you free. Even if you are arrested, it gives you a reason to complain about the cop when you have that dog and pony show on camera.”
Whatever you do, be polite and respectful throughout the interaction. If you can’t do that while explaining that what you have is legal, it’s probably just smarter to keep your mouth shut. “Remember, you’re performing for a camera that will eventually wind up in a DA’s office,” Sergi said.
Cannabis attorney Daniel Clancy offered similar advice. If an officer asks about it, explain that it’s a legal hemp product that you have in your possession. “You’re telling the officer that based on what the retailer has told you,” Clancy said. “We're walking out of the stores, simply relying on the packaging, and the labeling, and the sales people who represent to us that this is a hemp-derived product, and that it's legal.”
The problem is, sometimes what’s on the packaging and in the lab reports isn’t representative of the product you leave the story with, Clancy said. “My experience tells me that oftentimes, depending on what we buy, and where we buy it, and who we're buying it from, it may or may not be what the package says it is,” Clancy said. “It may or may not be a hemp-derived product. It may very well be marijuana, which is illegal in the state of Texas.”
Whatever the case, though, it’s still important to build your defense during your interaction with the officer. “Obviously, anything you can have on you to show it was purchased at this retail store, here’s the receipt, here’s the packaging that says it’s a hemp-derived product … all of those things are going to support your position,” Clancy explained.
If you’re carrying the product loose, without a receipt, you might be out of luck. At that point, you can almost guarantee your product will be seized although you may not be arrested. The product will likely be tested by police, and depending on what they find, you could face criminal charges later. That may happen regardless, but at least with your receipt and the lab reports that show the product is legal, you’ll have some defense against the charges.
Maybe the officer just isn’t hearing it. They don’t care that you, the packaging and the lab reports say the product is legal. At that point, it’s best to let the officer do what they’re going to do, respectfully revealing as little information as possible. Sure, you’re required to show them your ID, but you’re not required to answer questions that may incriminate you, especially without a lawyer present.
“You're never required to answer questions,” Clancy said. “You do have the right to have counsel if you feel like you're starting to be sort of pushed into a corner and are being targeted or accused of a certain crime and all of a sudden things start to really seem like it's gone from a simple traffic stop to a more serious matter. … At that point in time is when you need to respectfully say ‘Officer, I understand you have a job to do. I want to cooperate. I will cooperate. But I feel it's important that I speak to an attorney before I answer any more questions,’ and then let the process play out.”
