In the State of Indiana, possession of marijuana is still a crime. Never mind the fact that marijuana has been legalized or decriminalized in neighboring states like Illinois, Michigan, and Ohio—Indiana has yet to budge on the legality of cannabis.

Public Opinion

This is so out-of-step with public opinion that the Marion County Prosecutor has openly declared a policy change, announcing that his office would no longer be prosecuting possession cases involving an ounce or less of marijuana. Based on an decision recently handed down by the Indiana Court of Appeals, it may be time for other counties to likewise start reconsidering their hardline approach.

What Has Changed?

A number of years ago, Indiana legalized hemp. As it’s currently defined at statute, hemp means any part of the cannabis plant with 0.3% or less concentration of THC. Any part of the plant with more than 0.3% concentration of THC remains illegal to possess.

In marijuana prosecutions, the State’s default is to put the arresting officer on the stand. This officer will testify that they have been trained in drug recognition, and that based on their training and experience, the substance in question is marijuana. This used to be good enough.

What the courts are just now acknowledging is there’s no way for an officer to look at plant material and confirm that it has a high enough THC concentration to be illegal. There’s absolutely no way to visually distinguish legal hemp from illegal cannabis.

What Does It Mean?

Throw delta-8 into the mix, and it looks like the State is going to have a much harder time with marijuana possession cases going forward. Without expensive lab testing to differentiate hemp from marijuana, prosecutors will have no good way to prove possession beyond a reasonable doubt.

This is bound to have ripple effects on pending and future cases, because it will change the way prosecutors approach cases of simple possession—the kind that Marion County is not currently taking to trial.

Make the Right Call

Indiana may have some old-fashioned laws, but this is still good news for anyone facing marijuana charges. If you have any questions, give us a call at 317-632-3642 and remember—always plead the 5th!