Criminal Defense Attorneys in North and South Carolina

HABLAMOS ESPAÑOL

Criminal Defense Attorneys in North and South Carolina

HABLAMOS ESPAÑOL

10.0Gael Gilles
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The National Trial Lawyers

Gilles Law, PLLC

Serious Representation Under Serious Circumstances

CBD and Hemp in North Carolina Criminal Law –This blog aims to explore a newly-evolving issue in North Carolina criminal law – CBD and hemp. This blog is intended for informational purposes only and not as a substitute for the advice and counsel of a criminal defense lawyer.

Hemp – is hemp legal in NC?

Yes. Hemp is currently legal in North Carolina. It is legal to possess hemp. It is also legal to grow hemp in North Carolina, as long as the person has the proper licensing.

Is CBD legal?

It depends. CBD that is derived from marijuana is illegal. CBD that is derived from hemp is legal.

Hemp versus marijuana

Hemp and marijuana look and smell identical. The smell of both fresh and burnt hemp and marijuana smell identical. The difference between the two is that hemp-derived CBD contains up to .3% TCH, while marijuana can contain more than .3% THC.  

So how can you tell the difference between hemp and marijuana?

You cannot tell the difference just by observation. Law enforcement officers cannot tell the difference by observation. A person would have to test the substances for the THC levels in order to tell the difference between the two. Currently, there is no field test in North Carolina that would enable law enforcement to test THC levels. The testing kits that are currently used merely allow for law enforcement officers to test for the presence of THC. However, since these tests do not test for levels of THC, these tests do not provide a mechanism to identify marijuana versus hemp. 

*Note that making an admission to the substance being marijuana is probably not in your best interest. Generally, we advise that suspects never make statements to law enforcement officers. Everything you say can and will be used against you. We further suggest that you never consent to a search.

Field tests cannot distinguish between hemp and marijuana, officers cannot distinguish hemp from marijuana, but can state crime labs do so?

Testing capable of distinguishing hemp from marijuana exist in private labs. However, according to the UNC School of Government, it appears that, currently, state law enforcement lab infrastructure is not currently equipped to do so (May 2019).

Marijuana/hemp and probable cause

A law enforcement officer’s claim that they small marijuana is often used as “probable cause” to search a vehicle and person. Typically, they will claim that they “smell a strong odor of marijuana” and proceed to search a suspect’s vehicle and their person. Typically, that person is subsequently arrested for what the officer finds (e.g., marijuana, other drugs, gun, etc). However, there is now an argument that a criminal defense attorney can make regarding lack of probable cause to search on the grounds that hemp and marijuana smell identical. Of course, if you make an admission to using or possessing marijuana, this is a much more difficult task. Please note that this is a fairly new issue (as of the writing of this blog) and it will likely take time for courts to adapt.

Probable cause to arrest – possession of marijuana

Finding marijuana typically gives an officer probable cause to arrest. A criminal defense attorney can make a similar argument to the one discussed above regarding probable cause to arrest and/or may make the argument that the state cannot prove beyond a reasonable doubt that the substance is marijuana. Again, if you make admissions, this is a much more difficult task.

Drug tests and CBD

A person with hemp-derived CBD in their system may still test positive for THC. Typically, drug testing cannot distinguish between hemp-derived and marijuana-derived CBD.

If you have been charged with a crime in North Carolina or South Carolina, contact us to speak with a criminal defense attorney.

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