Legal Articles

Spuds VS Buds

J. Bradley Klepper
Attorney at Law

You knew it was going to happen. We all did. A commercial vehicle hauling “legal” hemp/marijuana would be stopped, the cargo seized and the driver prosecuted.

On January 24, 20198 the Idaho State Police seized 6,701 pounds of allegedly illicit marijuana at the East Boise Point of Entry. Not surprisingly, the driver was arrested and is facing marijuana trafficking charges.

What makes this case so interesting is that the driver was not transporting marijuana from the cartels but was instead hauling industrial hemp - at least according to his bill of lading.
At the stop, the driver presented his bill of lading. However, the trooper became suspicious that the cargo was not hemp but was instead marijuana.

To that end, the officer opened up one of bags and tested a sample of the alleged hemp. The test came back positive for THC – the chemical in marijuana that provides the high. A K9 unit also alerted to the cargo. The driver was arrested and, if found guilty of the trafficking charges, faces at least 5 years in prison and a $15,000 fine. None of this would be out of the ordinary except for the fact that hemp is legal nationwide.

Hemp and marijuana are basically different varieties of the same plant. While marijuana contains high amounts of THC, hemp does noes not. However, it is very difficult to visually tell the plants apart. Herein lies the problem. The fundamental difference is that under federal law, Hemp must contain less than .3% THC.

In 2018 the Federal Government passed the Farm Bill which made industrial hemp and its byproducts, including CBD legal. Because of the alleged benefits of CBD in dealing with anxiety, stress, arthritis and other conditions CBD dispensaries have turned into big business. This is why Big Sky Scientific, the owner of the hemp involved in the stop, is suing the county prosecutor’s office and the Idaho State Police for the return of its hemp.

In its lawsuit Big Sky Scientific says it bought 13,000 pounds of hemp from a registered federal hemp grower licensed with the Oregon Department of Agriculture. The company also says it conducted tests on 19 samples so the hemp at issue and its THC content were compliant with federal requirements.

In response, Idaho says that the drug test and canine test were done correctly. Interestingly, the test conducted in the field and the canine test can’t distinguish between hemp and marijuana. The field test and canine test only test for the presence of any THC. Idaho law defines marijuana as any part of the cannabis plant that shows ANY evidence of THC. Thus it does not matter how low the level of concentration of THC. The presence of any THC is enough to violate the law. This is where it gets interesting.

Big Sky Scientific’s attorney claims that federal law prevails in this scenario and that not only is Idaho violating the Farm Bill but it also the Commerce Clause of Constitution.

Of course the prosecuting attorney disagrees and the Idaho State Police have stated that under Idaho law any amount of THC is illegal in the state and they will continue to aggressively enforce the Idaho law.

So what does this mean for the Trucking Industry? It means that the poor driver of the truck transporting the hemp inadvertently finds himself in the middle of what could be an epic fight about marijuana vs. hemp. It also means that we are heading for a showdown between the States and Federal government as everyone struggles to get their arms around the booming CBD/Medical Marijuana issue.

With that in mind, any carrier transporting industrial hemp across state lines should make sure they understand the laws of each and every state they will enter. Failure to recognize the differences could very well place you in the same scenario as we discussed here as Idaho is not the only state that takes a hard line position.

J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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