Industrial hemp is legal, both federally and in North Carolina. Hemp is a plant identical to marijuana in both smell and appearance. Both hemp and marijuana are “cannabis.” It is impossible to tell the difference between the two substances in the field, without a sophisticated chemical analysis. Not even dogs can tell the difference between legal hemp and illegal marijuana.
Legal hemp contains not more than 0.3% delta-9 THC. If it contains a greater amount of THC, it is illegal marijuana. To convict someone of possession of illegal marijuana, the THC content of the substance must be proved to be greater than 0.3% beyond a reasonable doubt.
Hemp and marijuana look the same and have the same odor, both burned and unburned. This makes it impossible for law enforcement to use the appearance of marijuana or the odor of marijuana to develop reasonable suspicion for a search of a person or their vehicle, or probable cause for arrest, seizure of the item, or search warrant.
One district attorney’s office in North Carolina has stopped prosecuting marijuana cases because officers are unable to distinguish between marijuana and hemp.
Over 30,000 people are charged with marijuana-related crimes in North Carolina every year.
These charges disproportionately affect Black and Brown people because of racial profiling and disparate policing practices – even though rates of marijuana and hemp usage are similar across demographics.
Law enforcement may not use the odor or appearance of alleged “marijuana” as reasonable suspicion to search a person or their car or home. They may be smelling legal hemp, as opposed to illegal marijuana. Any search or seizure on this basis should be suppressed.
Before deciding to plead guilty, a person facing criminal charges for illegal marijuana should be aware of their right to force the State of North Carolina to obtain a chemical analysis of the substance and prove beyond a reasonable doubt that it contains more than 0.3% THC. This lab test is costly and beyond the capacity of the State Crime Lab for misdemeanors. For felonies like trafficking, the State will likely pay for this lab test.
If it is your first time getting a misdemeanor weed charge, you might be able to get a “deferred prosecution.” Then, you won’t have a charge on your record. This might be your best option, instead of fighting the charge. Talk to your lawyer.
Please consult an attorney about your individual circumstances. We are not your attorney and this website is for educational purposes. It cannot and does not replace consultation with a qualified attorney about your specific circumstances.