A Hanover County judge Judge tosses marijuana charge for man who legally purchased CBD product

A young many was ticketed for carrying marijuana when in fact he had possession of an industrial hemp product he purchased at a local gas  legally. The state of Virginia’s roadside test cannot differentiate between the two;
Written by 
Trista Best, Registered Dietitian.
|Last Updated:
Cannabis legalization

Get You Up To Speed

For those who just want the quick version of the story. A young many was ticketed for carrying marijuana when in fact he had possession of an industrial hemp product he purchased at a local gas  legally. The state of Virginia’s roadside test cannot differentiate between the two; marijuana and legal hemp. The state lab cannot determine the exact amount of  THC in the product, which would have been all the evidence Mason needed since his product was later determined to have only .28% THC.

Inadequate equipment on two levels of enforcement led to a young man being nearly charged and incarcerated for carrying a legal hemp product.

The Case

In September Mason approached defense attorney Jay Breneman to take on his case. With over 11 years of experience and having handled many marijuana cases, Breneman obliged.

Throughout his investigative process Breneman found many red flags surrounding legal industrial hemp and the state’s ability to adequately test these products. When it came down to the end of his investigation Breneman was genuinely concerned at how any marijuana cases can be tried at this point considering the state’s inability to test CBD and marijuana products accurately.

Two major red flags – State Police Officers are unable to differentiate with roadside tests between legal and illegal marijuana/hemp andState Labs are unable to determine the exact percentage of THC in industrial hemp products.

State labs in Virginia have openly admitted they are unable to determine the exact percentage of THC within a hemp or marijuana product. This is a concern considering there are law regarding how much THC can be in industrial hemp, let alone being able to differentiate adequately between legal versus illegal products.

Mason’s exact product was tested using a lab that can determine the exact percentage of THC and was found to have .28 percent THC. This means not only was Mason’s hemp product not illegal marijuana, but was also legal hemp under the 2018 Farm Bill.

After being convicted by a General District court Breneman took Mason’s case to Circuit Court. A Hanover County Circuit Court Judge, Overton Harris, honorably upheld the law when he threw out Mason’s case based on the fact that the State of Virginia was ill-equipped to handle such citations.

Robert Mason would have faced jail time had Judge Harris not seen the glaring red flags in this case. Mason carried a product legally sold within the state. The state of Virginia rushed their laws to make products containing 0.3% THC or less legal. Yet, because their law-enforcing equipment was not up to par Mason would have had a serious charge and jail time on his record.

Until the state lab in Virginia is able to find a solution for this issue it is clear marijuana cases may not hold up in court. This is a victory for those who would find themselves in Mason’s place in the future.

Industrial Hemp, Illegal Marijuana & Marijuana Charges

State Labs Struggle to Differentiate

Congress reviews and passes legislation regarding the Nation’s agriculture, conservation, nutrition, and forestry policies every five years under a bill known as the Farm Bill. Last year President Trump passed the 2018 Federal Farm Bill which contained portions that legalizing the growth of industrial hemp.

Under this law hemp products, like CBD, can legally contain up to 0.3% of THC. This is the compound found I cannabis that is responsible for the psychoactive effects, the high.

A Lesson Learned – On Both Sides

The 2018 Farm Bill may have made these products legal, but it seems some important technology hasn’t caught up with the law. Unfortunately, a young Virginia man had to find out the hard way, along with state authorities, that field tests cannot differentiate between legal hemp and illegal marijuana.

After spending the day with his sister at a local amusement park Robert Mason, a 24-year old from Louisa County, Virginia, found himself with a ticket for possession of marijuana. Mason’s sister was pulled over in Hanover County for speeding on the way home and it was at that time the police officer stated he smelled marijuana in the vehicle.

Sure that he was protected by the law Mason gladly handed over the hemp flower he purchased at a gas station in Charlottesville, along with the bowl, grinder, and receipt. The officer tested the product and it came back positive for being marijuana for which Mason received a ticket. This is a serious charge for a young man to receive.

Unfortunately for Mason the hemp flower looks almost identical to marijuana, contains enough THC to pick up on the roadside test, and apparently smells quite similar – kudos for the police officer for his well-trained sense of smell.

The Breakdown

These roadside tests are commonly used to determine if a product is legal being industrial hemp or marijuana. However, it wasn’t until Mason’s case that it was uncovered these tests fall short in a significant way.

Because it is legal for CBD/hemp products to contain 0.3% THC or less in the state of Virginia some products will test positive as marijuana if they contain over 0.1% THC. A significant amount of THC, in this case anything over 0.1% will pick up on these roadside tests and be determined as positive for illegal marijuana.


Trista Best
Trista Best
Registered Dietitian
Trista Best is a Registered Dietitian, Public Health Dietitian, and former college Nutrition Professor. She completed her Bachelor of Science in Health Science from Armstrong Atlantic State University in 2009, Masters of Public Health Nutrition from Liberty University in 2014, and Bachelors of Science in Food and Environmental Sciences from the University of Alabama in 2018. Her dietetic background is in Public Health, Medical Grade Supplements, and Childhood Nutrition.

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