The Confusing Landscape Surrounding Delta-8 THC, CBD, and Driving Under the Influence

Federal law permits the purchase of Delta-8-THC goods both in-person and online. Typically, Delta-8 falls under the same state rules that govern cannabis. Many states are now examining the legality of Delta-8 THC, which is currently prohibited or limited in a number of states.

Whether or not Delta-8 THC is legal in Indiana is an unclear matter and cannot be given a straightforward answer. Additionally, law enforcement agents are in a tough spot about what to do if they suspect someone has ingested Delta-8 before or while driving. There is no fail-proof way to test for THC or Delta-8, which makes it challenging to regulate and govern use while operating a vehicle. Simply put, the best way to avoid trouble is to never use a cannabis product while driving.

Delta 8 THC is an isomer of delta 9 THC – the primary psychoactive ingredient in marijuana plants, meaning that it has similar chemical properties but molecularly arranged in a different way. However, due to subtle differences in its molecular structure, delta-8 is about 50% less potent than delta-9. Delta 8 THC is a minor cannabinoid. When you extract delta 8 THC from hemp, the end product contains 0.3% or less delta 9 THC. The 2018 Federal Farm Bill introduced the concept of legal CBD and Delta-8. It states that all hemp derivatives with up to 0.3% delta 9 THC are federally legal. Individual states do have the right to extend the federal regulations on cannabinoids, imposing their own restrictions.

Until this past year, Indiana had not addressed whether purchasing Delta-8 THC goods was prohibited within the state. In an official opinion from the Attorney General’s office in January, Delta-8 THC and other THC variants, were defined as Schedule I controlled substances pursuant to Ind. Code § 35-48-2-4(d)(31). They voiced that “Delta-8 THC, delta-10 THC, and THCP are naturally found in the cannabis plant but in trace amounts, and most of the products on the market are at least partially – if not fully – synthetically derived. Ind. Code § 35-48-2-4(d)(31) not only declares synthetic derivatives of all cannabis species as Schedule I controlled substances, but also the extracts, isomers, and any other derivatives.” There continue to be limited exceptions for substances with concentrations below 0.3% delta-9 THC, but they determined none of these apply to the compounds discussed above.

Are you still confused? You’re not alone. Many CBD and Delta-8 dispensaries throughout the state continue to sell products with uncertain legal status. The legislature has yet to fully establish what’s what when it comes to Delta-8 THC. Regardless of the ongoing debate surrounding its legal status, you cannot drive under the influence while using any Cannabis related product.

If you have been charged with a crime related to the use of a Cannabis product and would like to know more about the confusing landscape surrounding Delta-8 THC, contact McNeelyLaw today at 317-825-5110 to talk to an experienced Indiana criminal defense attorney.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.