On Monday November 26, 2018, the North Dakota Supreme Court will hear arguments in the matter State v. Abuhamda.

Background

The appeal arises from a criminal matter pertaining, in part, to the sale of products containing cannabidiol (“CBD”). On May 15, 2017, law enforcement seized several products from Abuhamda’s stores, and charged him with seven counts, including delivery of a controlled substance, possession of a controlled substance, and unlawful advertisement of drug paraphernalia.

On September 12, 2017, Abuhamda filed a motion to dismiss the counts alleging the illegality of CBD and to suppress evidence. On October 18, 2017, the trial court denied Abuhamda’s motion. Subsequently, in March 2018, Abuhamda entered an Alford plea (thereby admitting the prosecution had enough evidence to likely prevail at trial, while not admitting guilt), but reserved his right to appeal the Order Denying the Motion to Dismiss and Suppress Evidence. Then, on April 2, 2018, Abuhamda filed the instant appeal to the North Dakota Supreme Court.

The Appeal 

The thrust of Abuhamda’s appeal as it pertains to CBD is that: CBD is not the same as THC; CBD is not an illegal substance under North Dakota Statute; and the State could not “prove what part of the plant the CBD . . . came from” (i.e. could not prove it came from an illegal part of the cannabis plant). See Abuhamda Brief . In support of such positions, at the trial court level Abuhamda offered evidence regarding the DEA clarification on cannabis as well as excerpts from arguments made in the Hemp Industries Ass’n v. DEA appeal.

The State, perhaps obviously, argued that CBD is illegal under North Dakota law and as such the Motion to Dismiss and to Suppress Evidence was properly denied. At the trial court level, the State offered testimony that when tested the stalk of the cannabis plant contained little CBD while the flowering top contained both CBD and THC, and thus, the CBD in Abuhamda’s products would have come from the illegal part of the plant and as such the products are illegal.

In this case, where CBD is illegal, is under the definition of marijuana at both the state and federal level. CBD is derived from the cannabis plant, of which certain portions are illegal under the definition of marijuana at the state level.

The State further contended that:

Taken one step further, the federal government, through the Drug Enforcement Agency, has classified CBD as illegal.

See State Brief.

In reply to this position, Abuhamda countered the State’s position with the DEA’s own statement that

the mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.

See Abuhamda Reply.

Ultimately, for his reply Abuhamda argued that the State bore the burden of proof in the case and it failed to meet such burden because it could not

 prove whether or not the substances in question in this matter come from the illegal or legal part of the plant.

* * *

There is no scientific way to determine what part of the plant the CBD or THC came from that was in the confiscated products.

Consequently, then, the denial of the Motion to Dismiss and to Suppress Evidence was improper.

 

It will be very interesting to see how the North Dakota Supreme Court handles this matter, and how it considers CBD–particularly in light of recent events including FDA’s approval of a CBD-containing substance (and the FDA letter to DEA regarding the appropriate approach to scheduling CBD), and discourse on and bi-partisan advocacy for the 2018 Hemp Act.

You can listen to the oral arguments here: http://www.ndcourts.gov/court/webcasts.htm

(As an interesting aside, on November 6, 2018 Measure 3 will be on the North Dakota Ballot. This measure would legalize adult use in North Dakota, and would also expunge prior cannabis convictions.)