Summary
The Nebraska Supreme Court reviewed the dismissal of criminal charges against Deborah S. Archer and Cory L. Russell following preliminary hearings concerning the sale of CBD products. The court held that the State failed to establish probable cause that the CBD was a controlled substance under Nebraska's Uniform Controlled Substances Act because it did not show the CBD had pharmacological effects similar to THC or was synthetically produced. The court overruled the State's exceptions and declined to address the effect of the Nebraska Hemp Farming Act.
Topics
Practice areas
Questions Presented
- Whether the district court erred by dismissing the charges after the preliminary hearing for insufficient probable cause.
- Whether the State established probable cause that the CBD oil was a controlled substance under the Uniform Controlled Substances Act.
- Whether the district court was required to explain its dismissal of the charges following the preliminary hearing.
Holdings
- The State failed to establish that the CBD oil was a controlled substance under Neb. Rev. Stat. § 28-405(c)(12) because the evidence showed that it contained no THC and did not have the same pharmacological effects as THC.
- The State failed to establish probable cause under § 28-405(c)(25) because it did not show that the CBD in the oil was synthetically produced.
- A preliminary hearing determines whether a crime was committed and whether probable cause exists to believe the accused committed it; it is not a criminal prosecution or trial on guilt or innocence, and a finding of probable cause holds the accused for trial.
- Neither statute nor case law requires a district court to explain its decision to dismiss charges following a preliminary hearing.
Key quotations
“In short, the purpose of a preliminary hearing is to ascertain whether a crime has been committed and whether there is probable cause to believe the accused committed it.” (335)
“We find no error in the district court’s dismissal of the informations filed against Archer and Russell, and thus, we overrule the State’s exceptions.” (338)
Factual background
Archer owned DJ's Vapes in Herman, Nebraska, and Russell worked there. During an investigation into whether the business sold illegal drugs, law enforcement purchased products advertised as containing CBD oil from Archer and Russell. Testing found CBD but no THC, and the State did not establish whether the CBD was synthetically produced; expert testimony also indicated that CBD and THC did not have the same pharmacological effects.
Procedural history
Archer and Russell were initially charged in county court with possession of CBD with intent to manufacture, deliver, or dispense and conspiracy. After an initial bindover, the district court dismissed the charges following pleas in abatement. The cases were later refiled several times; after a May 2019 preliminary hearing, the district court dismissed all charges without prejudice for insufficient probable cause. The Supreme Court overruled the State's exceptions, finding no error in the dismissals.