If you live in Texas, keeping up with the laws regarding Delta-8 THC has become a bit of a full time job. With the ever changing landscape surrounding Delta-8, it can be difficult to know whether or not it is legal and what rights you have.

What is Delta-8?

Delta-8-THC is a psychoactive substance found in the cannabis sativa plant, which also produces marijuana and hemp. Although Delta-8 is a naturally occurring compound in cannabis, it only exists in small amounts. As a result, concentrated amounts of Delta-8 are manufactured from hemp-derived cannabidol (CBD).

Stated differently, Delta-8 is a natural compound in hemp, but at very low levels. In order to produce Delta-8, the compound must be extracted using a chemical reaction process. This leaves, what some might deem, a highly synthesized product.

Under Texas law, synthetic marijuana is illegal. However, proponents of Delta-8 argue that both hemp and CBD are legal, therefore any derivative produced is also legal. This in turn, created the loophole under which Delta-8 could be produced.

How is Delta-8 Different from Delta-9?

Delta-9-THC is the main psychoactive ingredient found in marijuana; it’s what produces the “high.” When people refer to THC, they are usually talking about Delta-9.

Delta-8 has a chemical structure that is similar to that of Delta-9, but is less potent. Delta-8 produces feelings of euphoria, relaxation, and pain relief; though much milder compared to that of Delta-9. In fact, Delta-8 is often referred to as “marijuana-lite” or “diet weed.”    

Kinda. Sorta. Maybe.

In 2018, the federal government passed the Farm Bill, which legalized hemp and CBD products that contain less than .03% tetrahydrocannabinol (THC). A year later, Texas house Bill 1325 passed similar legislation. Smoke shops and CBD stores across Texas began selling Delta-8 THC products.

Yet, on October 15, 2021, the Department of State Health Services (DSHS) labeled all concentrations of Delta-8 a Schedule I controlled substance. This decision came after the U.S. Food and Drug Administration (FDA) issued a consumer update that provided information related to the health risks associated with Delta-8.

But on October 20, 2021, Hometown Hero, an Austin based CBD company, filed suit against the Texas DSHS and its commissioner, John Hellerstedt. The petition alleges that DHSH impermissibly reclassified Delta-8, thereby depriving individuals and businesses of a property interest without due course of law.

Less than a month later, on November 8, 2021, Travis County district court Judge Jan Soifer granted a temporary injunction allowing for the sale of Delta-8 products. As of right now, this injunction will be in place until trial, which is slated for January 2022.

What if I Get Arrested for Delta-8?

Right now it is legal to purchase and possess Delta-8; however, this was not the case just a few days ago. With all of the new legislation and court rulings around Delta-8 THC, law enforcement could get caught in the weed(s).

If you are arrested for Delta-8, it is important to keep in mind these three things:

1.         You will not change the officer’s mind. If an officer has made the decision to arrest you for Delta-8, there is no statute or court case to cite that is going to change his mind. The best thing that you can do is cooperate and keep quiet.

2.         Keep the evidence. If you purchased Delta-8 from a gas station or CBD store, make sure you keep the receipt. This can later be used to prove you made a legitimate purpose and that you were not breaking any law.

2.         Trust the process. While a peace officer may not know the nuances of these laws, the prosecutor should. So, even though you are arrested, that does not mean the charges will stick. Prosecutors often reject cases that don’t constitute an illegal act and you have the right to obtain legal counsel.

Do I Need an Attorney?

Just because a prosecutor should know the laws on THC possession, does not mean they actually do. Some Texas district attorney’s continue to treat Delta-8 just as if it were Delta-9-THC, which is a felony offense. And a felony drug conviction can have life-altering consequences that include, but are not limited to:

Even though Delta-8-THC is legal, it is still important to have an attorney on your side that will educate judges and prosecutors about the law, and also fight to keep your record clean.

If you have been arrested for Delta-8 or have questions concerning your rights, contact me today.

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