Is it legal in Texas to possess Delta-8 THC? The short answer is yes. At least this is the case for now. The most informed answer, however, is much more complex than a simple “yes.” In the post below, I will explain how the State of Texas views Delta-8 THC and how the Courts or the legislature could change the law in the near future.
What is Delta-8 THC?
Before we can talk about the legality of Delta-8, we must first discuss what it is. Delta-8 tetrahydrocannabinol (THC) is a psychoactive substance that is manufactured from the plant Cannabis sativa (commonly referred to as “hemp”). Delta-8 is one of over 100 different types of cannabinoids that this plant produces. The most popular form of THC that is manufactured for recreational use is Delta-9 THC. This is what most people have traditionally consumed when they wanted to get high from marijuana. Delta-8 is a slight variation on “regular” marijuana that still produces a high, but that not appear on all drug tests.
What is the Law on Delta-8 THC Now?
For many years, the State of Texas considered all hemp products illegal. This included Delta-9 and Delta-8 THC. In the 2019 legislative session, however, lawmakers reconsidered this stance and legalized certain hemp products. Texas Health and Safety Code Chapter 443 (HSC 443) now defines “hemp” as consumable hemp products that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC).
As you might imagine, many police and conservative Texans did not agree with this law. As recently as July 2022, the Texas Department of State Health Services has attempted to categorize Delta-8 THC as a Schedule I controlled substance. This would have permanently banned Texans rom possessing Delta-8 THC. A Texas Court issued an injunction against this ruling and Delta-8 THC remains legal for the moment. However, a new Court hearing in January 2023 could change the status quo.
What Happens if I Possess Delta-8 THC?
Texas Law does not currently prohibit residents from possessing Delta-8 THC. There are, however, some potential legal consequences for possessing this substance.
Under Texas and federal law, police may search your vehicle if they detect the odor of marijuana. The odor of burnt marijuana containing either Delta-9 or Delta-8 THC is indistinguishable. Therefore, Courts have consistently upheld the rights of police to search vehicles without first determining if the smell is from marijuana containing Delta-8 or Delta-9 THC. Using this same logic, Courts have also consistently upheld the rights of the police to arrest the driver if they find what appears to be marijuana during their search.
If police also find a handgun during their search, they can charge the driver with Unlawful Carrying of a Weapon. This is a Class A misdemeanor, punishable by up to a year in jail and up to a $4,000 fine. The police will also confiscate your handgun. They might also not return it to you even if the Court dismisses your case!
You may also be arrested for Driving While Intoxicated if you operate a motor vehicle while high on Delta-8.
How Can I Clear my Record if I am Arrested with Delta-8?
The only way to distinguish between marijuana containing Delta-8 and Delta-9 THC is to test it in a. lab. Under Texas law, if chemical analysis reveals that the substance was only Delta-8, then the State must dismiss the case. The accused would then be able to petition the Court for an Expunction. This would require all State agencies to delete all records of the arrest. It would be as if it never occurred.
Other Things to Consider
In my experience, prosecutors will give a defendant a choice. Either accept a plea offer with “lenient” terms, or request that the State test what they found. The catch is that prosecutors might withdraw their plea offer immediately if a defendant requests a test. They do this to force defendants who might know that they are guilty anyway into accepting the plea. Testing varies in cost depending on the vendor used to perform the test. Having an expert appear to testify in court about this tests costs even more. The prosecutor would like to avoid these costs if possible. The prosecutor will also usually make the defendant pay for the test if the results come back positive. An unintended consequence is that many defendants of low financial means will accept plea deals that they do not have to out of fear.
Some people might be thinking that this should not be a problem. After all, the Delta-8 guy assured them that they were purchasing Delta-8. Unfortunately, not all Delta-8 vendors are as reliable as you might think. You might have, in fact, unwittingly purchased regular old Delta-9 THC and not even know it.
This ambiguity places a defendant into a dilemma. How sure are they that they purchased legal THC, how much risk can they accept, and how will a conviction for possession of marijuana affect their career? These are all concerns that vary depending on the individual.
Conclusion
An experienced attorney is crucial if you have been arrested for possession of marijuana. This is true even if you are confident that what you possess is Delta-8 THC. Please do not risk your clean criminal record and possibly your career by trying to navigate the legal system on your own. If police have arrested you for possession of marijuana, please call Carter Criminal Defense today for a consultation.