MARIJUANA CRIMES: THE EVOLVING ENVIRONMENT OF MARIJUANA PROSECTUTIONS

The rising popularity of CBD has the potential to change the landscape for those facing criminal charges for marijuana possession in North Carolina. At Marcilliat & Mills PLLC, our criminal defense attorneys know how to make this changing landscape work to your benefit.

We provide a tenacious defense against marijuana-related felony and misdemeanor drug charges including:

• Possession of less than .5 ounces, a Class 3 Misdemeanor (NCGS 90-95(a)(3) and NCGS 90-95(d)(4))
• Possession of .5-1.5 ounces, a Class 1 Misdemeanor (NCGS 90-95(a)(3) and NCGS 90-95(d)(4))
• Possession of over 1. ounces, a Class I Felony (NCGS 90-95(a)(3) and NCGS 90-95(d)(4))
• Trafficking 10 pounds of more, potentially a Class H, Class G, or Class F Felony (NCGS 90-95(h)(1))
• Possession of marijuana paraphernalia, a Class 3 Misdemeanor (NCGS 90-113.22A)

How North Carolina Laws On CBD And THC Differ

Cannabidiol (commonly referred to as “CBD” or “hemp”) is legal in North Carolina. For practical purposes, legal CBD is distinguishable from the illegal substance only by its “THC” content. THC, or delta-9 tetrahydrocannabinol, is the main psychoactive ingredient in marijuana.

The legal definition for marijuana is found in NCGS 90-87(16). There, marijuana is defined as all parts of the Cannabis plant, except “industrial hemp”. Legal “industrial hemp”, in turn, is defined as “all parts and varieties of the plant Cannabis sativa (L.), cultivated or possessed by a grower licensed by the Commission, whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis.” (NCGS 106-568.51(7))

What these definitions mean for you and your neighbors is that marijuana is illegal if it contains more than .3% TCH and legal if its THC content is .3% or less.

A Distinction Without Much Difference?

Recently, an SBI memorandum was leaked regarding issues that State law enforcement was having with enforcement of marijuana possession in light of CBD’s legality. It stated, “there is no easy way for law enforcement to distinguish between (legal) industrial hemp and (illegal) marijuana.”

Legal hemp and marijuana look the same, smell the same, burn the same, are consumed using the same methods and paraphernalia, and can be packaged and manufactured in the exact same forms. The only distinction between the illegal and legal version of the Cannabis plant in North Carolina is THC content.

This is critical in the context of criminal charges. Before convictions and punishments can be doled out, the State must prove beyond a reasonable doubt that a crime has been committed. Likewise, before a car or house can be searched, an officer must have probable cause that a crime has occurred. The question in marijuana prosecutions in light of the leaked memo becomes how can the State prove that what they are saying is illegal marijuana is actually illegal? The question is relevant to prosecutions of all marijuana crimes on the books in North Carolina.

The State Lacks The Tools To Prove Illegality

The only true way to know whether a Cannabis-based substance is legal or illegal is lab testing, but the North Carolina State Crime Lab currently does not have a method to test for THC content – the Crime Lab conducts “qualitative” tests, but not “quantitative” tests on suspected marijuana, i.e., the Crime Lab tests for whether a substance contains THC, but does not test for how much THC is in a particular substance.

Referring back to the definitions of marijuana under North Carolina law, the Crime Lab’s testing capabilities are critical. The Crime Lab cannot determine if a substance if legal or illegal marijuana because they cannot conclusively demonstrate whether a substance meets the .3% THC threshold.

If you are charged with any marijuana-related offense in North Carolina, our attorneys at Marcilliat & Mills PLLC have the experience, knowledge, and training to fight for you in court using the latest and most relevant information available in this evolving area of criminal law.