The 0.3% Question: THC Concentration under Wyoming’s Weed Laws

Cannabis Tours, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

On April 6, 2022, the Wyoming Supreme Court ruled that the State does not have the burden to prove that a substance suspected to be marijuana has more than 0.3% THC concentration in order to sustain a criminal conviction.

Because substances containing THC, but containing less than 0.3% THC concentration are legal under federal laws concerning hemp, one man, Alfonso Roman, argued that, in a case where he was charged with unlawfully possessing marijuana, the State had to prove the substance contained more than 0.3% THC concentration in order to sustain a conviction. The Wyoming Supreme Court held otherwise.

At trial, the State presented the testimony of a forensic scientist from the Wyoming State Crime Lab, Joshua Williams, who testified that he tested “green plant material” that was “positive for the presence of [THC]” and that the “green plant material” was a “green leafy substance . . . consistent with marijuana.” Mr. Williams did not provide testimony about the substance’s THC concentration and the State did not present any other information about the THC concentration of the substance.

Mr. Roman argued that the State could not sustain its prosecution on this evidence because possession of THC-containing substances that have THC concentrations under 0.3% is not illegal.

The Court acknowledged that hemp or substances containing less than 0.3% THC concentration are not controlled substances, citing Wyo. Stat. Ann. §§ 35-7-1002(a)(iv), 35-7-1014, -1016, -1018, -1020, -1022, and -1063(b).

Still, the Court observed that, under Wyoming’s Controlled Substances Act/drug laws, the State is not required to “negate any exemption or exception” and, rather, the burden of proving any exemption or exception is “upon the person claiming it.” Wyo. Stat. Ann. § 35-7-1050(a). It further observed that a claim that a substance is really hemp not marijuana is an express exception to Wyoming’s Controlled Substances Act/drug laws. Wyo. Stat. Ann. § 35-7-1063(a)-(b). Consequently, the Court concluded that Mr. Roman, and any other similarly situated defendant, bore the burden of establishing that the substance he possessed had a THC concentration “of not more than 0.3%” pursuant to Wyo. Stat. Ann. § 35-7-1050(a) and Wyo. Stat. Ann. § 35-7-1063(a)-(b).

Going forward, where a person is charged with a drug offense under Wyoming law for possessing a substance that the person claims is hemp, discovery issues will be paramount. I’d wager it would be worth making a Brady claim to the State or the Wyoming State Crime Lab to aver that the State needs to provide the defendant with exculpatory evidence, including evidence that the substance’s THC concentration is less than 0.3%.

Here’s the full decision:

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