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Phelps apologizes to Chinese fans Feb. 12: Olympian Michael Phelps issued a video apology to his Chinese fans saying that his recent behavior was 'regrettable'.

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McCulloch, who said his client was out of town at the time, doubted that anything his client told authorities would assist them in the case against Phelps.

“It seems to me that Richland County has a host of its own crime problems much more serious than a kid featured in a photograph with a bong in his hand,” he said.

Investigators don’t need to have the marijuana Phelps may have had that night to make a case against him, although the lack of physical evidence makes things a lot tougher. They will need several witnesses saying they were at the party, smoked marijuana in that pipe and saw Phelps smoke it too, said Swerling.

There’s one more problem with the case, too. Even if Phelps is charged, authorities may not be able to get him back to South Carolina to face a judge. State law only allows extradition for charges that carry more than a year in prison — and possession of one ounce or less of marijuana is a misdemeanor that carries 30 days in jail for first offenders.

Phelps lives and trains in Baltimore, and if Richland County authorities were serious about hauling him in on a misdemeanor drug charge, city police would be willing to help, said Col. John Skinner, chief of patrol for the department.

But if Phelps were arrested in Baltimore, it would be up to South Carolina to extradite him. Prosecutors sometimes decide against bringing defendants in from out of state to face minor charges, Skinner said.

“Is the charge serious enough in that primary jurisdiction for them to spend the time and resources to go and bring that person into custody? That’s not a decision I could make on their part,” Skinner said.