WV Concentrates Under Hubbard v. Spillers (W.Va. 1974)

Last verified: May 2026

Hubbard v. Spillers — The Controlling Case

The West Virginia Supreme Court of Appeals decided Hubbard v. Spillers in 1974, at a time when hashish prosecutions were beginning to appear in state criminal courts and the controlled-substances definitions were being tested. The Court held that hashish is a "compound or preparation of marijuana" within the meaning of the West Virginia Uniform Controlled Substances Act and is therefore controlled to the same extent as plant-form marijuana. The decision is now codified into statutory text via W. Va. Code § 60A-2-204(d)(19), which identifies "marihuana, including any preparation thereof" as Schedule I.

Hubbard’s holding extends naturally to modern concentrate forms that did not exist in 1974: butane hash oil (BHO), CO2-extracted oils, ethanol distillates, rosin, live resin, kief, and the vaporizable cartridge oils that now dominate the legal-state recreational market. Whether possession of a "510-thread" THC vape cartridge is treated as possession of marijuana or possession of a controlled substance is, as a matter of West Virginia law, the same question with the same answer.

Possession Treated Like Marijuana — for Non-Cardholders

For a non-cardholder, possession of any cannabis concentrate is treated like possession of marijuana under W. Va. Code § 60A-4-401(c): a misdemeanor of 90 days to 6 months in jail and up to $1,000 fine on first offense. Conditional discharge under § 60A-4-407 is available for first offenses involving less than 15 grams. Second and subsequent offenses double under § 60A-4-408.

Manufacturing Discretion — Hash and BHO Cases

The complication is that concentrates are themselves the product of a manufacturing process. Cannabis flower can be converted to hash, BHO, or distillate via mechanical, solvent-based, or thermal processes. When prosecutors charge a defendant who possesses both flower and concentrate, or possesses extraction equipment (butane cans, vacuum ovens, rosin presses, closed-loop extractors), they have prosecutorial discretion to charge:

• Simple possession — misdemeanor under § 60A-4-401(c)
• Possession with intent to deliver — felony under § 60A-4-401(a)
• Manufacturing — felony under § 60A-4-401(a) "manufacture" provision (1–5 years, up to $15,000)

The "manufacturing" charge is most commonly pursued when extraction equipment is present and indicia of small-scale BHO production are visible. BHO production is also dangerous (butane explosions have caused fatalities and severe burns) and frequently triggers separate fire-code, building-code, and reckless-endangerment charges.

Patient Card Limits

A valid West Virginia medical cannabis card protects against state-law possession charges for product purchased at a licensed dispensary — including dispensary-purchased concentrates (vape cartridges, oils, tinctures). The card does not protect against:

• Concentrates purchased in another state (cross-border violation)
• Self-extracted concentrates (manufacturing felony)
• Concentrates outside the 30-day supply limit
• Concentrates purchased on the illicit market within WV
• Concentrates carried onto federal land (New River Gorge, Monongahela National Forest)

Vape Cartridge Reality

Vape cartridges — the dominant concentrate form in modern adult-use markets — deserve specific attention. A single 1-gram cartridge containing ~70–90% THC oil is, by weight, equivalent to perhaps 5–7 grams of dried flower in psychoactive content but registers under WV law as a small concentrate quantity. The cartridge form factor is convenient for cross-border transport, easily concealed, and produces minimal odor — all of which means it is the most-trafficked concentrate form in WV cross-border interdiction. K-9 detection of cannabis vape cartridges is unreliable; officers often rely on plain-view discovery and consent searches.

Hemp-Derived "Cannabinoid" Products

Federal hemp legalization under the 2018 Farm Bill (and its state-level implementation through the West Virginia Department of Agriculture) created a parallel market for hemp-derived cannabinoid products including delta-8 THC, delta-10, HHC, and CBD-with-THC blends. WV SB 220 (2023) imposed an 11% excise tax on hemp-derived cannabinoid retail sales. The federal hemp cliff scheduled for November 12, 2026 (PL 119-37 § 781) caps THC in nationally sold hemp products at 0.4 mg per package — effectively eliminating most current hemp-derived intoxicant products including in West Virginia. Until that cliff hits, hemp-derived delta-8 carts in WV smoke shops remain a gray-market alternative to dispensary-purchased delta-9 carts.

Practical Advice

Concentrate cases — particularly those involving extraction equipment or BHO — warrant specialized criminal-defense representation. The "simple possession" vs. "manufacturing felony" charging distinction can mean the difference between conditional discharge and 5 years in prison. The WV State Bar (304-553-7220) maintains a referral service for criminal-defense attorneys. Federal-employed defendants and CDL drivers should also consult an employment attorney before any plea negotiations.

Related on this site: WV First-Offense Conditional Discharge, WV Cultivation = Felony from One Plant, WV Cannabis DUI.