South Dakota’s Weed Laws Are So Fucked a Man Is Facing 30 Years Over Hemp
Hemp is now federally legal, but South Dakota’s lawmakers apparently haven't received the message.
Published on August 21, 2019

A truck driver is facing 36 years in a South Dakota prison for transporting hemp from Colorado to Minnesota — two states where hemp is legal. Under South Dakota law, he has been charged with possessing and trafficking marijuana, not hemp, even though federal law now bans individual states from blocking the transport of federally legal hemp.

Robert Herzberg, 41, was charged with intent to distribute marijuana, possession of more than 10 pounds, and ingestion of cocaine and marijuana, according to the court. If he’s found guilty, he’s facing up to 15 years in prison for the weed distribution charge, and another 15 years for possession charges, and then an additional six years between the cocaine and marijuana ingestion charges, the Rapid City Journal reported.

According to Herzberg’s attorney, Matthew Kinney, the defendant was transporting hemp, not marijuana. Hemp was federally decriminalized late last year after President Trump signed the 2018 Farm Bill, which removed hemp from the Controlled Substances Act. Hemp is federally defined as cannabis that contains less than 0.3 percent THC. In other words, hemp gets no one high, and Kinney said lab results show that the cannabis Herzberg was driving with came in at 0.29 percent THC

South Dakota has “been so ingrained on the criminalization of marijuana possession, that police officers don’t have knowledge of the science or the law regarding what is marijuana or hemp,” Kinney told MERRY JANE in a phone interview. By sight and smell alone, marijuana is indistinguishable from hemp, as they’re technically the same plant, cannabis. “If a police dog smells marijuana, there’s going to be a probable-cause-based search out in the field.”

So, how’d Herzberg — who thought he was legally and safely transporting hemp between two legal states — end up in South Dakota’s criminal system on marijuana-selling charges? 

Gallery — Fuck-Tons of Weed That Only the Cops Are Smoking:

Earlier this summer, Herzberg was hired by a Colorado-based organic farmer to drive a 292-pound hemp shipment from Colorado to Minnesota. A CBD oil company in Minnesota planned to purchase the hemp shipment upon delivery. Herzberg was compensated $1,000 for the gig.

On July 16, while transporting the hemp shipment, Herzberg was pulled over by a South Dakota state trooper for doing 86 in an 80mph zone. As soon as Herzberg rolled down his driver’s side window, the trooper could smell the potent scent of cannabis. Smelling weed, whether it’s marijuana or hemp, is still probable cause for a drug search in South Dakota. 

The trooper claimed that the search turned up two large bags of “raw marijuana,” and a field analysis confirmed that the cargo was marijuana, not hemp. After being booked in a local jail, Herzberg was subjected to a urine screening, which found traces of both marijuana and cocaine in his sample. In South Dakota, using (“ingesting”) a drug is considered a crime, whereas most US states will only charge a suspect for possession. 

South Dakota’s legislature has taken a strong prohibitionist stance while the rest of the nation plays catch-up to states such as Washington, California, and Colorado, where recreational marijuana possession and sales are legal. To synchronize state law with recently reformed federal law, the South Dakota legislature passed a bill last year to legalize hemp in the Mount Rushmore State, but that bill was vetoed by the state’s governor, Kristi Noem.

Gov. Noem said in a press release: “As leaders, we must have answers to how any new law will be implemented effectively, and how it will impact our state.” She added that it “could be reckless to introduce a product that has serious implications on the health and safety of the next generation."

To reiterate, hemp does not get anyone high, so it shouldn’t form addictions or otherwise compromise cognition or mental health.

Regardless, South Dakota’s public officials can’t agree on how the state’s backward weed laws should apply today, either. For instance, Attorney General Jason Ravnsborg said that all hemp and CBD products are illegal in the state. Meanwhile, state attorney Mark Vargo argued that CBD oil made from hemp is legal if it contains negligible amounts of THC.

The US Midwest remains one of the final battlegrounds for weed legalization in America. While the staunchly-conservative Deep South has, over the past few years, loosened up some of its weed restrictions to permit medicinal use of CBD, hemp, or even marijuana, states such as Kansas, South Dakota, and Nebraska continue to uphold old, oppressive laws against cannabis users and cultivators. 

Legal confusions such as those stemming from Robert Herzberg’s case happen “because [law enforcement] haven’t taken the time to study the science behind cannabis,” defense attorney Matt Kinney noted. “If states want to turn their heads, this is what happens.”

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Randy Robinson
Based in Denver, Randy studied cannabinoid science while getting a degree in molecular biology at the University of Colorado. When not writing about cannabis, science, politics, or LGBT issues, they can be found exploring nature somewhere in the Rocky Mountains. Catch Randy on Twitter and Instagram @randieseljay
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