Marijuana and CBD Crimes

The rising popularity of CBD has potentially changed the landscape for those facing criminal charges for possession of marijuana in North Carolina. At Roberts Law Group, PLLC, our criminal defense attorneys know how to use these changes to benefit you if you are facing criminal penalties for marijuana related offenses, including offenses such as:

  • NCGS 90-95(a)(3) and NCGS 90-95(d)(4)-possession of less than .5 ounces of marijuana, a Class 3 Misdemeanor
  • NCGS 90-95(a)(3) and NCGS 90-95(d)(4)-possession of between .5 ounces and 1.5 ounces of marijuana, a Class 1 Misdemeanor.
  • NCGS 90-95(a)(3) and NCGS 90-95(d)(4)-possession of more than 1.5 ounces of marijuana, a Class I Felony.
  • NCGS 90-95(h)(1)-trafficking 10 pounds or more of marijuana, a Class H, Class G or Class F Felony depending on amount.
  • NCGS 90-113.22A-possession of marijuana paraphernalia, a Class 3 Misdemeanor.

What Makes CBD Different From Marijuana?

As we know, cannabidiol (commonly referred to as "CBD" or "hemp") is legal in North Carolina. For practical purposes, legal CBD is distinguishable from the illegal substance, marijuana, only by "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).

In essence, what these definitions mean for North Carolinians is that marijuana is illegal if it contains more than .3% THC, and legal if the THC content is .3% or less.

The Police Have Trouble Telling Them Apart

Recently, an SBI memorandum was leaked regarding issues that State law enforcement was having with enforcement of marijuana possession laws in North Carolina in light of CBD's legality. As stated in the memorandum, "there is no easy way for law enforcement to distinguish between [legal] industrial hemp and [illegal] marijuana."

Legal hemp and illegal 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 versions of the Cannabis plant in North Carolina is THC content.

This is critical in the context of criminal charges because before criminal 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 becomes how can the State prove that what they are saying is illegal marijuana is actually illegal marijuana, not just CBD or hemp?

The question is relevant to prosecutions under the all of the marijuana crimes on the books in North Carolina, including those listed above. 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. This is because the Crime Lab cannot determine if a substance is legal or illegal marijuana because if they cannot test whether a substance meets the .3% THC content threshold.

You Can Fight Back Against Drug Crime Charges Today

If you are charged with any marijuana-related offense in North Carolina, the attorneys at Roberts Law Group 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. Call Roberts Law Group in Raleigh at 877-880-5753, or contact our office online to schedule a free consultation.