A Hanover County, Virginia judge has dismissed a cannabis possession charge after a state laboratory supervisor said he couldn’t tell the difference between legal and illegal cannabis, according to a WWBT report. Robert Mason was charged during a traffic stop when a Hanover County Sheriff’s deputy said he smelled cannabis and Mason – who was the passenger – gave the CBD flower, which he purchased at a gas station, to the officer.

When the officer field tested the flower, it came back positive, and Mason was ticketed. According to the report, a document provided by the store showed a THC level of .28 percent.

“There’s nothing illegal. … His specific words was (sic), ‘it looks like a duck, it sounds like a duck, it’s a duck.’ – Mason, to WWBT

Jay Breneman, the defense attorney on Mason’s case, told WWBT that he has “serious questions” about how states can move forward “on just about any” cannabis case if the state labs can’t determine legal cannabis-derived products made legal under the 2018 Farm Bill, such as CBD flower, from those still on the federal Drug Schedule.

Mason had initially been convicted in General District Court but Breneman appealed the case to the Hanover County Circuit Court. During the trial, Judge Overton Harris asked a supervisor from the state’s Richmond lab whether he could tell if the product “was purchased at the service station down the road,” the report says.

“No, your Honor, I could not,” the supervisor said.

“[The judge] looked at the prosecution and myself, and back and said, ‘not guilty,’” Breneman said, which WWBT confirmed with court transcripts.

Following the federal removal of hemp from the Controlled Substances Act, law enforcement officials throughout the U.S. have said they would stop enforcing or prosecuting low-level cannabis crimes because of the lack of testing to differentiate industrial hemp and THC-rich cannabis products.

Earlier this month, Virginia Attorney General Mark Herring tweeted support for adult-use cannabis legalization in the state. Gov. Ralph Northam (D) included cannabis law reforms in his campaign platform.

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