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Is Delta-8 Legal in Wisconsin? Laws & Potential Charges

As of January 2024, Delta-8 THC is not explicitly illegal in Wisconsin. Wisconsin courts and lawmakers have yet to answer essential questions relating to laws and statutes in place as of 2024 and whether they apply to Delta-8.

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Wisconsin Delta-8 Laws

Wisconsin does not have specific Delta-8 laws. Wisconsin’s legislature and courts have not yet acted on the questions of Delta-8 THC products. The Wisconsin legislative council issued a brief on the matter in 2021. Delta-8 exists in a “legal loophole”. The statutes in question are 94.55 and 961.14 and relate to the definition of “hemp” and the definition of a “schedule 1” controlled substance.

Can you be charged with OWI for driving on Delta-8?

Yes, driving under the influence of delta-8 can result in being charged with an OWI in Wisconsin. Driving or operating machinery while under the influence of Delta-8 is a criminal offense in Wisconsin. Possession of delta-8 THC under twenty-one years of age is prohibited by Wisconsin state law. Wisconsin is a “zero tolerance” state, meaning any detectable trace of THC in your blood will be used to charge you by the state. 

Does delta-8 THC fall outside of current weed laws? 

Delta-8 is a new form of THC and may not fall under the laws that make delta-9 THC illegal. Synthetic forms of delta-9 THC are illegal in Wisconsin. Since delta-8 THC is made chemically to have the same psychoactive effect as delta-9 THC, it could be ruled illegal.

What is Delta-8 THC?

Delta-8 THC is a psychoactive chemical that comes from the cannabis plant. This means that delta-8 THC can be used to get high. Only small amounts of delta-8 are found in cannabis plants, but it can also be made using a chemical process. Delta-8 THC is made by chemically changing CBD. CBD is another chemical found in hemp. Hemp is the legal type of cannabis, whereas marijuana is the illegal type.

Delta-8 THC laws in Wisconsin

Delta-8 Vs. Delta-9 THC?

Delta-8 is not the same as delta-9 THC though they both come from cannabis. Delta-9 THC is the most common type of psychoactive chemical in cannabis plants. When a cannabis plant has high enough levels of delta-9 THC, it is called a marijuana plant. In Wisconsin, delta-9 THC is an illegal controlled substance. Right now, the only difference between delta-8 and delta-9 THC is that we don’t know if delta-8 THC is illegal or not. Both delta-8 and delta-9 THC can be used to get high and are found in cannabis—just in different amounts.

Is Delta-8 synthetic THC?

Synthetic THC is THC that has been synthetically derived or chemically synthesized. This means that it did not occur naturally in the cannabis plant, but was made some other way, like in a lab. Synthetic THC is also an illegal controlled substance in Wisconsin. While delta-8 is not explicitly illegal, it may be considered a synthetic form of illegal THC. Because delta-8 only occurs naturally in such small amounts, it is usually made chemically from CBD. This might make it illegal as a synthetic form of THC, but the legislature and the courts haven’t said for sure.

Where do Delta-8 and Delta-9 come from?

Delta-8 and delta-9 both come from cannabis plants. There are two types of cannabis plants—marijuana and hemp. Both plants contain Delta-9 THC, just at different levels. Delta-9 THC is a naturally occurring psychoactive substance. A plant is considered hemp in Wisconsin when it has a delta-9 THC level of 0.3% or lower. THC that comes from the marijuana plant is illegal in Wisconsin. Hemp and CBD which also come from the cannabis plant are not illegal in Wisconsin. Delta-8 is derived from CBD and hemp exclusively. 

Delta-8 THC is also psychoactive and can be used to get high. It usually occurs in small amounts naturally. Manufacturers of THC products have begun making this delta-8 THC in larger amounts by chemically changing the CBD that comes from the hemp plant. This creates a question as to whether delta-8 is legal. After all, it comes from CBD which is found in hemp—both of which are legal. But it can be used just like delta-9 THC—which is illegal.


Attorneys for Delta-8 possession/OWI charges. 

Being criminally charged in Wisconsin can have a lasting impact on your career, schooling, and life. You need a firm that has former prosecutors and seasoned criminal defense attorneys that will help you navigate the legal system. The attorneys at Grieve Law are experienced in possession and OWI cases with a reputation for winning. Contact us today to discuss the facts of your case.


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References: Hemp Classification Wisconsin Statute § 94.55 (1). | Schedule 1 Controlled Substances. Wisconsin State Legislature: § 961.14 | Wisconsin Legislative Council - Issue Brief. Delta-8 Tetrahydrocannabinol (THC). (2021) |

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