St. Charles County: Erroneous felony drug convictions and policy challenge looming

A case challenging the legality of possibly hundreds of marijuana-related felony convictions will likely be brought before a St. Charles County judge this summer.

The challenge is based on policies in many jurisdictions – including St. Charles County – that make a distinction between leafy marijuana and marijuana derivatives (such as oils and gummy type snacks), which does not exist in the law, but has been used to obtain felony convictions in courts across Missouri.

Under current Missouri law:

• Possession of less than 35 grams of marijuana is considered a misdemeanor.
• Possession of 35 grams or more is defined as a Class D felony.
• Possession of an illegal substance that is not marijuana is a Class D felony.

A 1976 case (State of Missouri v. Randall, 540 S.W.2d 156 (Mo. App. 1976)) directly addressed this issue. The case involved hashish, a marijuana derivative made from resin that contains a higher concentration of THC than the typical leaf. In a nutshell, the Randall case examined the legal definition of marijuana and found that hashish was a derivative and a more concentrated form of marijuana. Therefore, it could not be its own independent charge of “possession of hashish” in addition to possession of marijuana.

How St. Charles County justifies its charging policy

St. Charles County justifies its charging policy based on a semantic distinction: They charge possession of wax, oil, gummies, etc., as possession of “THC” as opposed to possession of “marijuana.” THC – one of over 200 compounds contained in the marijuana plant, is the psychoactive compound that triggers the “high” associated with marijuana. It is independently listed as a Schedule 1 controlled substance and is illegal under Missouri law (RSMo. 195.017). “Marijuana” and “synthetic marijuana” are likewise separately and independently listed as banned Schedule 1 controlled substances. All three are separately listed as Schedule 1 substances, and are therefore illegal.

The St. Charles County prosecutor’s office seemingly ignores, however, the definition of marijuana contained in the same chapter (RSMo. 195.010), which includes every derivative, compound and extract of the marijuana plant, regardless of physical form.

As “THC” is not specifically listed by name in the definition of marijuana, its status has to be determined as a matter of science and found in settled case law and the definitions contained in the state statutes.

A top forensic toxicologist, when asked, said without hesitation that she would consider THC a compound of marijuana — one of over 200 compounds contained in the plant, as a matter of fact. To me this now makes sense why the definition of marijuana is broad to include every compound, so that it does not have to specifically proscribe over 200 separate compounds.

Charging possession as “THC” instead of “marijuana” is incorrect

In summary, chapter 579.015 RSMo. is the law that makes drug possession illegal. It states that marijuana under 35 grams is a misdemeanor; anything else is a felony. So by charging possession as “THC” instead of as “marijuana” – which it clearly is by definition, both legal and scientific – these jurisdictions have skirted a very clear legal directive that the charge should be issued as a misdemeanor. St. Charles County and other jurisdictions that make this distinction seem to be saying, “This is not marijuana. This is THC, so therefore possession of it is a felony instead of a misdemeanor.”

I believe that is incorrect and so does the expert toxicologist with whom I’ve consulted.

Going to court to challenge felony charge for St. Charles County client

My office is currently representing a client charged with felony drug possession after a search of his car turned up a vape pen containing marijuana-infused oil and a minor amount of THC wax. Though the quantity obviously was well under 35 grams, he is now facing a felony possession charge and the penalties that go along with it if he is convicted. I contacted the St. Charles County prosecutor’s office and pointed out my issue with the felony charge but was told this is how they routinely charge possession of what they see as THC.

So, we have no choice but to go to court to challenge the felony charge. If our challenge is successful, the charge against my client will be reduced to a misdemeanor and thousands of convictions based on this policy and others like it could potentially be overturned. Thousands of people across Missouri could see a felony removed from their records, which could open the doors to better employment opportunities and the restoration of numerous rights.

There needs to be consistency in how this very common possession is charged throughout the state. We cannot have prosecutors in neighboring jurisdictions charging misdemeanors as felonies because of an inaccurate application of settled law. Missourians and people traveling through Missouri need to feel secure that when they possess small amounts of marijuana and marijuana derivatives they will not be wrongfully charged with a felony should they come into contact with law enforcement.

Stay tuned: The date of our preliminary hearing in St. Charles County is August 5.

The attorneys at The People’s Counsel have been recognized by Super Lawyers, The National Trial Lawyers and others. Contact our team for a free consultation at 314-669-6464 or at thepeoplescounsel/contact.

The People’s Counsel, headquartered in Clayton, Missouri, is a law firm comprised of trial attorneys with significant experience in criminal defense involving violent crime, drug offenses, traffic matters, employment discrimination and more. The firm has an extensive record of success before juries in venues across Missouri and Illinois.

Charles Barberio is a criminal defense attorney with a well-defined track record of winning at trial. He has accumulated dozens of not guilty verdicts over the past five years. Some of his committees and honors include previously serving as criminal chair elect for the Bar Association of Metropolitan St. Louis, Top 40 Lawyers Under 40 and Super Lawyers – Rising Star.