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Arizona voters approved recreational marijuana last November, and sales have been climbing as 2021 proceeds.  As we have previously discussed, Arizona’s Prop 207 had a number of effects, from legalizing possession of an ounce or less to expunging many marijuana-related felony convictions.  What’s still not legal?  Driving while impaired by marijuana, possession of more than an ounce of marijuana, and under-21 possession or use of marijuana, among others.  Every time we write a blog about marijuana, though, we emphasize that while these changes have happened here in Arizona and some other states, the federal government still considers marijuana a controlled substance.  Possession of any amount is technically a federal crime!  But what if you were to possess or use a substance that’s made from hemp—and hemp is federally legal under the 2018 farm bill—but it had very similar psychoactive effects on the human body as marijuana?

If you’ve been seeing articles or products referring to delta-8-THC and wondering what that’s all about, here’s a quick primer.  Delta-8-THC is THC that has been chemically converted from CBD.  As the scientific community understands it, delta-9-THC is the naturally occurring, primary psychoactive compound in marijuana that causes the high.  Delta-8-THC is an isomer of delta-9-THC, or a chemical compound with the same molecular makeup, but the atoms are arranged differently.  Because of this slight difference, the molecules won’t necessarily act identically, explaining why individuals feel as though delta-8-THC is less potent.  But the major difference?  Delta-9-THC comes from the marijuana plant, illegal on the federal level, whereas delta-8-THC is a chemical alteration of CBD, which comes from hemp, which is legal.

The purchase of marijuana products also has to take place in person and not be sent through the mail (remember, the mail is governed by federal laws), but hemp products are not under this same restriction, explaining why you can buy CBD lotion from online sellers .  So if you can buy CBD products online, can you also buy delta-8-THC products online and have them shipped into a state that doesn’t allow recreational or medical marijuana?  Wellllllll, perhaps you can, but we have to do our due diligence and tell you it may not be a good idea.  There’s significant debate whether conversion of CBD to delta-8-THC is a federally prohibited synthetic cannabinoid.

We can hear some of you now saying, alright, lawyers, you practice criminal defense and handle a lot of DUI cases, so while this is sort of interesting, where are you going with this?  So glad you asked.  One of the primary methods for testing substances for the presence of illegal drugs is through gas chromatography-mass spectrometry (GC-MS).   This is what labs in Arizona use to test substances possessed and blood from drivers arrested on suspicion of DUI for the presence of drugs.  The general way that the GC-MS works is that it takes the sample and breaks it down into small, electrically-charged particles, then sorts out those particles by weight and ionization.  Each drug compound has a different molecular weight and ionization based on its makeup.  Figure out the weight and you’ve figured out what drug you have or don’t have.  The problem with isomers, like delta-8-THC and delta-9-THC, for example, is that they can have the same molar mass and can also have very similar compositions, leading them to have very similar or identical ionization.  So how can we tell if someone used delta-8-THC or delta-9-THC?  At present, we can’t.  Our Arizona labs are not equipped to distinguish the two, and from a legal perspective, this has pretty significant implications.

We’ll be keeping tabs on this one, and on the rumblings that the federal government may be moving forward in decriminalizing marijuana, but in the meantime, we encourage everyone to stay safe and always know your rights!