COA certifies two more THC/hemp issues to SCOW.
State v. Kevin Jones, 2025AP1539-CR, 9/8/26, District IV; case activity (including briefs)
On the heels of its certification last month in Bethke (see our post here) asking SCOW to determine whether Wisconsin’s legalization of hemp requires the State to prove as an element of the offense of possessing tetrahydrocannabinols (THC) that a substance contains greater than 0.3 percent of THC, the COA certified two additional issues for SCOW.
First, if the State has the burden to prove a THC concentration greater than 0.3 percent, can the State meet its burden by relying on circumstantial evidence or must it present evidence of chemical testing. The State proposes that circumstantial evidence that Kevin Jones possessed THC and not hemp, such as his attempts to evade police and a large bag of a green leafy substance found in Jones’ trunk, are sufficient for the State to meet its burden.
Second, if the defendant bears the burden to show as an affirmative defense that a substance is hemp, what quantum of proof must the defendant produce. Jones argues that he only needs to show “some evidence” that the substance is hemp, at which point the burden shifts to the State to prove the substance is not hemp. The State disagrees with Jones’ burden-shifting method and argues that the defendant must establish to a reasonable certainty by the greater weight of credible evidence that a substance is hemp.