Gina Lee Castro
Hemp and its many intoxicating products have been legal in Wisconsin for eight years. But driving around with hemp products could still put you in hot water with the law, said Milwaukee attorney Andrew Mishlove.
Hemp looks and smells identical to marijuana, and both come from the Cannabis sativa L plant. But hemp is legal – for now – and marijuana is not.
When hemp users drive with these products in their cars, a police traffic stop can spiral into citations or even jail time, said Mishlove, who specializes in defending people charged with operating while intoxicated.
“It’s a mess,” he said. “Hemp is legal. Wisconsin law hasn’t caught up with that reality at all.”
Here's what we learned about why hemp can still put Wisconsin drivers at risk of an OWI.
Is it legal to drive with hemp in my car in Wisconsin?
Yes, but it’s a risk, Mishlove said.
If police officers catch a whiff of weed from a car or see it in the car, they can easily gain probable cause to make an arrest for possession of a controlled substance or begin an investigation into operating while intoxicated, Mishlove said.
Overall, state law doesn't say much about driving with hemp. Wisconsin doesn’t have an open container law for hemp the way it does for alcohol, Mishlove said. Nor is there a limit on how much hemp an individual can possess, or any laws on how drivers can lawfully transport hemp.
In contrast, in Illinois, where cannabis is legal, the product must be sealed in a child proof container and inaccessible to the driver.
Is it illegal to drive with hemp in my system in Wisconsin?
Yes. Wisconsin law does not allow drivers to have any THC in their blood. Any amount above one nanogram per milliliter is considered evidence of operating while intoxicated.
Although hemp is restricted to trace amounts of THC - the component in cannabis that makes users feel high - some products contain THC in amounts comparable to states where marijuana is legal.
In fact, a recent Milwaukee Journal Sentinel investigation found that many hemp products in Wisconsin contain THC above the federal legal limit, with consumers none the wiser. Some gummies and drinks below the federal legal limit still packed over 10 milligrams of THC per serving.
In addition, some hemp products contain a compound known as delta‑8 THC that is so similar to traditional THC that it appears chemically indistinguishable in blood testing, Mishlove said.
The THC blood test has been criticized by some scientists and lawmakers who say the limits are arbitrary and do not necessarily constitute impaired driving.
How does law enforcement determine impairment?
The Wisconsin State Laboratory of Hygiene conducts blood testing for law enforcement agencies across the state. Kayla Neuman, director of forensic toxicology, said the test cannot determine whether a person is impaired, nor can it show when THC was last consumed. The test only confirms that THC is present in a person’s system.
Neuman said observations from officers and results from roadside impairment tests contribute to evidence of impairment.
Chronic, daily THC users are more likely to have detectable levels of THC in their blood at all times and can exceed the one‑nanogram legal threshold, Neuman said.
But due to Wisconsin's zero-tolerance policy, people can be charged with an OWI even if they are sober, Mishlove said.
“It doesn’t matter whether you are impaired or high on this stuff or not,” he said. “You can’t have it in your system and drive.”
What are the laws in other states around THC and driving?
The Michigan Impaired Driving Safety Commission has said there is no scientifically supported threshold of THC in the body that proves impairment. As a result, Michigan doesn’t have a legal limit for THC. Instead, a series of roadside sobriety tests must prove the driver is impaired.
In some states where marijuana is legal, like Illinois and Colorado, the limit is five nanograms of THC, to account for chronic users.
How can hemp users in Wisconsin steer clear of legal trouble?
If you're a hemp user and plan to drive, try to keep documentation on you.
For example, Milwaukee Police Lt. Matthew Kaltenbrun said showing officers a certificate of analysis – a third-party lab test of the specific hemp product – is good evidence that the product in question is hemp, not marijuana.
Mishlove added that keeping the product's original packaging and receipt of purchase can prove the product was bought legally in Wisconsin.
As for how frequent users can prove they aren't currently impaired by THC, that's a tricky one.
"I advise people to not break the law," Mishlove said. "The law says don't drive with a restricted substance in your system. Don't use those products and drive in Wisconsin."
Gina Castro is a Public Investigator reporter for the Milwaukee Journal Sentinel. She can be reached at gcastro@usatodayco.com.
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