A case against two Washington County residents accused of illegally distributing cannabidiol at a Herman convenience store has been dismissed for a third time.
District Court Judge John E. Samson dismissed felony distribution and conspiracy charges against Deborah S. Archer of Blair and Cory L. Russell of Herman in his ruling, which was filed July 26, following a May 28 preliminary hearing.
The Washington County Attorney's Office filed an appeal Wednesday. Chief Deputy Erik Petersen cited three reasons for the basis of the appeal:
• The district court failed to articulate or provide a legal reason to why the court dismissed all counts as to both defendants.
• The issue of CBD legality is a novel issue in Nebraska and the state is requesting a legal analysis that would provide direction in future cases.
• The district court failed to indicate whether the state failed to prove an essential element of whether the court believes CBD is now legal pursuant to LB 657.
The Nebraska Hemp Farming Act (LB 657), which became effective May 30, allows for the cultivation and processing of hemp and opens new commercial markets for farmers and businesses through the sale of hemp products.
The new law provides licensing and regulation for the crop. Hemp crops must contain less than 0.3 percent THC, the principal psychoactive chemical in cannabis.
In a prepared statement, Washington County Attorney Scott Vander Schaaf said his office is appealing the issue in an effort to understand the court's opinion.
“It is important for not only this office to understand the reasoning of the court, but also for the defendants in the case,” he said. “It should be noted that a district court may have various reasons for rulings of this nature. Nothing in the court's ruling should be interpreted as 'legalizing' CBDs as that would be outside of this court's authority.”
Vander Schaaf said his office would continue to abide by Nebraska Attorney General Doug Peterson's opinion that CBDs are illegal in Nebraska.
“This will the policy until such time as this office provided further guidance by the courts or further action by the Nebraska Legislature,” Vander Schaaf said.
Peterson issued two memos before the latest law was passed. He has yet to clarify his interpretation of the new law.
Mallory Hughes, who represents Archer and Russell, said she doesn't believe the CBD oil seized from DJ's Vapes, 408 Main St., Herman, was ever illegal under Nebraska law. An expert from the University of Nebraska Medical Center testified during the most recent hearing that he was not able to detect THC in the CBD products tested.
“There is nothing in the statute that specifically made CBD oil illegal. There is no language that says cannabidiol is illegal so you have to go into the statute and read it and break it down,” she said. “Our expert witness said, 'No, the pharmacological effects of THC and CBD oil are not similar.' That, to me, is the answer.”
Archer and Russell were arrested in December 2017. A county court judge ruled March 19, 2018, that there was sufficient evidence to bind the case over to district court.
The case was dismissed June 15, 2018, following a plea in abatement.
The state refiled the case July 3, 2018. Following another preliminary hearing, it was dismissed Oct. 29, 2018.
The state refiled the case a third time in district court on Nov. 8, 2018.