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Is vaping a crime? What is it?

What is vaping?  Is it harmful?  Is vaping a crime?

Turn on the news and you’ll hear about vaping.  The media discusses illness and death associated with vaping.  But they also regularly discuss vaping in a criminal context.  Frequently there’s confused discussion regarding whether vaping is a crime.  In this blog post we discuss what vaping is and when it’s criminal behavior.

If you’re charged with any criminal offense, call Meyer Van Severen, S.C. at (414) 270-0202.  We’re a top criminal defense law firm based in Milwaukee, WI and defend all criminal charges throughout Wisconsin.  Indeed, we regularly defend drug cases.


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What is vaping?

Vaping a legal substance certainly isn’t a crime.  Further, many proponents of vaping indicate that it’s relatively safe.

According to the Center on Addiction:

Vaping is the act of inhaling and exhaling the aerosol, often referred to as vapor, which is produced by an e-cigarette or similar device. The term is used because e-cigarettes do not produce tobacco smoke, but rather an aerosol, often mistaken for water vapor, that actually consists of fine particles…

Along with the introduction of e-cigarettes to the mass market in the United States in 2007, vaping grew in popularity.  Vaping devices include e-cigarettes, vape pens, and advanced personal vaporizers (MODS).  A vaping device consists of four parts: a mouthpiece, a battery, the cartridge containing the inhaled substance, and a heating component.  Frequently the battery, substance, and heating component combine into one part.  The battery heats up the heating component, which vaporizes the liquid.  The user inhales the aerosol.

The liquid found in vaporizer products usually includes propylene glycol or vegetable glycerin-based liquid with nicotine, THC, or flakka.


Vaping: Is it a crime?
Vaping may be a crime depending on the substance ingested.

Is vaping harmful?

According to a Johns Hopkins article, vaping “is less harmful than traditional smoking.”  They go on:

E-cigarettes heat nicotine (extracted from tobacco), flavorings and other chemicals to create a water vapor that you inhale. Regular tobacco cigarettes contain 7,000 chemicals, many of which are toxic. While we don’t know exactly what chemicals are in e-cigarettes, [Dr. Michael Joseph] Blaha says “there’s almost no doubt that they expose you to fewer toxic chemicals than traditional cigarettes.”

But that’s not the complete answer.  Vaping is still bad for your health depending on the substance involved.  Nicotine itself certainly causes concerns, as it’s a toxic substance.  THC or other substances could create other issues.


But what about those illnesses?

As of October 1, 2019, the Centers for Disease Control and Prevention counted 1,080 lung injury cases associated with e-cigarettes and vaping products.  They count 18 deaths in 15 states.  All patients reported a history using vaping products.  Most of those patients report a history of THC-containing products, and there’s a suggestion that the outbreak somehow involves them.

But the CDC doesn’t know a few things:

  • The specific chemical exposures causing the lung injuries is unknown; and
  • The lung injury cases don’t link to a single product.

So when is vaping a crime?

In Bristol, WI, in September 2019, numerous individuals were charged after law enforcement uncovered 31,000 cartridges filled with THC oil.  Law enforcement alleged the defendants purchased $300,000.00 worth of THC distillate from California.  Police arrested the defendants after obtaining information from a confidential informant.

Again, vaping isn’t illegal.  But possession of marijuana is.  The defendants in that case faced charges for possession with intent to deliver THC.  Certainly an individual possessing THC, on its own, is guilty of a lesser crime.


Possession with intent to deliver THC

What is possession with intent to deliver THC?  There are certain elements that define this crime, provided in Wisconsin Criminal Jury Instruction 6035.  In detail:

  1. Firstly, the defendant possessed a substance; and
  2. The substance was THC.  THC is a controlled substances whose possession of prohibited by law; and
  3. The defendant knew or believed that the substance was THC; and
  4. Finally, the defendant intended to deliver THC.

Certainly possession of one cartridge doesn’t satisfy this section.  But two or more cartridges, or circumstances suggesting sale or delivery of the cartridge could lead to bigger problems.  Individuals involved in the packaging or repackaging of THC cartridges face charges for possession with intent to deliver THC.


Possession of THC

To clarify, next we’ll discuss possession of THC.  Section 961.41(1)(3g) of the Wisconsin Statutes prohibits possession of a controlled substance.  And Wisconsin Criminal Jury Instruction 6030 breaks down the elements:

  • Firstly, the defendant possessed a substance; and
  • Secondly, the substance was THC.  THC is a controlled substance whose possession is prohibited by law; and
  • Finally, the defendant knew or believed the substance was THC.

This section of the criminal code applies to individuals personally using THC cartridges.  While a first offense possession of THC can be a ticket, it’s also punishable by a misdemeanor.  Second or subsequent offenses are felonies.


So, is vaping a crime?

As this post discussed, vaping may be a crime.  What’s the substance you’re vaping?  If you’re vaping THC, you could be charged.  If you’re vaping nicotine, you’re not committing a crime.

Secondly, if you’re charged with any criminal offense in Wisconsin, contact Meyer Van Severen, S.C. at (414) 270-0202.  Our criminal defense attorneys specialize in providing the very best criminal defense in Wisconsin.