In order to determine if delta-8 is legal, we first need to establish what it is. Delta-8-tetrahydrocannabinol is very similar to delta-9-tetrahydrocannabinol, which is more commonly known as THC, or the psychoactive ingredient in cannabis.
When people are talking about toking up and getting high, they’re talking about delta-9-THC. So what’s the difference between delta-8 and delta-9? On an atomic level, there’s not a lot of difference at all.
Is All THC Created Equal?
According to Florida’s ACS Labs, the effects of delta-8 and delta-9 on test subjects are pretty comparable, with a few key differences. First, delta-8 has been found to lack the sedative effects of delta-9, meaning that users of delta-8 tend to be more clearheaded than the stereotypical pothead.
But what about legality? The Indiana Code says that both marijuana and THC are classified as schedule I controlled substances. Under the THC subsection, the law specifically states that this includes delta-9 isomers.
Isomers and Analogs
So what are isomers? Isomers are compounds with identical molecular formulas but distinct arrangements of atoms. Indiana has likewise criminalized controlled substance analogs, which means you’re not allowed to sell something that’s substantially similar to a controlled substance for intoxicating effects. Interestingly, the Indiana Code excludes low THC hemp extract from the controlled substance classification.
The statutory definition of low THC hemp extract specifically states that it must contain no more than three-tenths of a percent of delta-9-THC. As we’ve already seen, delta-8 is distinct from delta-9. So if there’s no delta-9 contained in delta 8, can delta-8 be illegal in Indiana?
What Does Indiana Say?
Unfortunately this remains a gray area. If a court were to find that delta-8 is an isomer of delta-9, that would make it a controlled substance. On the other hand, if the court were to compare delta-8 to the standards of low THC hemp extract, it could go the other way.
This is a gray area, with statutory support pointing to both a legal and illegal status for delta-8. There’s also the fact that stores in Indiana are selling delta-8 THC and the Drug Enforcement Administration is not raiding them. Local police aren’t shutting them down either, which seems to suggest that possession isn’t currently against the law.
Don’t Get Too Excited
For one thing, the State of Indiana could change delta-8’s legal status at the drop of a hat. For another, delta-8’s chemical similarity to delta-9 could lead to issues, even if the former does not qualify as a controlled substance. For example, a defendant on probation and subject to drug tests should not expect to get away with smoking delta-8.
It’s also worth remembering that Indiana’s intoxication statute includes alcohol, legal drugs, illegal drugs, or any combination of the three. If you smoke delta-8 THC and get behind the wheel, delta-8’s unclear legal status will not save you from a DUI / OVWI charge.
Make the Right Call
This is a changing and emerging area of law, especially as more and more states elect to decriminalize or fully legalize the recreational use of cannabis. If you or someone you know has a drug-related DUI / OVWI or questions about delta-8 THC, give us a call at 317-632-3642, and remember—always plead the 5th!