MONROE — Drug charges were dismissed against three men after lab tests showed the suspected drugs found in a rural Monroe home during search warrants were in fact legal cannabidiol, or CBD.

In addition, a trace amount of cocaine found on the property “wasn’t enough to warrant further prosecution,” said Green County District Attorney Craig Nolen, who filed the cases against the men in October. Also, “we weren’t seeing cocaine pipes, or crack pipes” that would indicate heavy cocaine use. 

“I didn’t feel they were a sufficient public danger to warrant continued prosecution of the case,” Nolen said.

Hans L. Gehrmann, 27, Patrick A. F. Hoeper, 31, and Kevin D. Vukovich, 29, faced one felony count each of maintaining a drug-trafficking place and misdemeanor counts of possessing drug paraphernalia, from an Oct. 21 search of a home in the N4400 block of Klondike Road.

Gehrmann also faced separate felony charges of possessing THC with intent to deliver and maintaining a drug-trafficking place, both from a search of the same home in May. Police seized jars of a wax-like salve during the search.

Vukovich also faced felony charges of possessing THC and cocaine as a repeat offender. He was convicted of similar charges in Dane County in 2012 and 2014. Gehrmann and Hoeper, who do not have criminal convictions in Wisconsin, were charged with misdemeanor counts of possessing THC and cocaine.

Hoeper, a traveling musician who plays bluegrass and rock ‘n’ roll fiddle under the stage name “Pat Fiddle,” was staying at the residence while passing through the area, his attorney said.

“My client was not living there. He was just staying there for a few days,” Jeremiah Meyer-O’Day said. He added that this further weakened the charge against Hoeper of “maintaining a drug-trafficking place.”

“He got caught up in overzealous Green County police activity,” Meyer-O’Day said.

State law and police technology has not fully caught up with the proliferation of CBD products, including smokable flower buds that smell and look similar to cannabis with a high content of THC, or tetrahydrocannabinol, the psychoactive compound that’s illegal for recreational use in most states.

Clinical research shows both THC and CBD have medical benefits, however THC is psychoactive and impairing while CBD is not.

CBD products are allowed by state law to have a trace amount of THC, however the field tests most police use simply test for the presence of THC, not the level of THC or the ratio of THC to CBD.

In August, Nolen said, the Green County Sheriff’s Office started using different tests that do indicate low vs. high THC concentration, for use when someone is claiming a drug is a legal CBD product and not a high-THC product.

Nolen said the jars of wax-like salve found during the search of the home in May tested positive for the presence of THC in a field test.

“We didn’t have the test kits that we have now,” he said.

With the new field test kits, deputies determined that evidence seized during the October search had “probable low THC.” The cases still moved forward for prosecution given the presence of THC, even if small.

However, subsequent tests at the state crime lab showed the substances didn’t have enough THC to prosecute.

For Nolen, the case exposes loopholes in the state law for processing hemp, such as the CBD salve jars found in the residence.

State law “actually doesn’t define what a processor is,” Nolen said, or specify how much a person can make before being considered a hemp processor. “If they’re ... taking raw product and converting it to a salve, it leaves a lot of room for interpretation.”

Nolen said he intends to talk to Rep. Todd Novak about these loopholes in the law.

Meyer-O’Day takes a dim view of field tests for THC.

“The field tests are largely garbage, anyway,” he said. They’ll even show that dark chocolate has THC in it, he said. Moreover, lab testing only compares the ratio of THC to CBD and does not “precisely” give a percentage of each.

“I am seeing this issue crop up more and more. Some police agencies who have got the new (field test) have been declining to prosecute. Others have gone the route that we saw in this case,” he said.

Meyer-O’Day sees inconsistencies in drug laws as currently written, particularly when it comes to the traffic charge of operating a vehicle with a detectable restricted controlled substance in the blood.

A person could chug a bottle of Robitussin PM and still legally drive despite being impaired by the sedative and dissociative hallucinogenic effects of the cough syrup’s active ingredient. Meanwhile, he said, people are prosecuted for having a detectable amount of THC in their blood while driving, even if not impaired.

Given the trace amounts of THC in CBD products, he argues that this is unconstitutional in that “it is irrational to hold someone responsible” for something that could be perfectly legal.

For this case, he’s happy to have his client’s charges dismissed.

“This was a very short-lived prosecution, fortunately. The shorter they are the better, as far as I’m concerned. It is always a pleasure and in my client’s best interest to get things dismissed,” Meyer-O’Day said.