Our clients were cruising along when they were abruptly rear-ended. A deputy arrived on the scene and said he smelled marijuana. He ordered the two clients out of the vehicle. One client admitted that she had been smoking a hemp cigarette. Eventually, after an illegal search, the deputy found what he thought was marijuana in two places in the vehicle. As a result, the two individuals were charged with Possession of Marijuana in Forsyth County.

Our client owns several hemp shops and maintains an ABC permit. A conviction for Possession of Marijuana meant they’d likely lose their ABC permit and face huge financial losses. So, they turned to criminal defense attorney Clarke Dummit for help.

You Can’t Tell by the Smell

At trial, the deputy was testifying about his training and experience in smelling and identifying marijuana based upon the smell and appearance. During a “voir dire”, a preliminary form of cross-examination, the deputy admitted that he was not trained on the smell or appearance of hemp. As such, he could not testify on the difference.

The court granted Clarke Dummit’s motion to suppress all evidence which was found as a result of the search based merely on the smell. They agreed with attorney Clarke Dummit’s argument that “You can’t tell by the smell!” Nor can you tell the difference between legal hemp and illegal marijuana by looking at it.

The Deputy, in this case, was very honest and admitted that he was not trained on hemp and could not tell the difference. Even so, Clarke Dummit had prepared to call an expert witness to testify that the only distinguishing difference between hemp and marijuana is the level of THC. Absent a lab test for the exact quantity of TCH in the plant, there is no way that a human, nor a trained drug dog can tell a difference. Being prepared with an expert witness turned out to be more than was needed, but Dummit Fradin attorneys work to be super prepared for court in every case.  

Protecting our Clients from Double Jeopardy

The motion to suppress evidence could have been made pre-trial, which would have been much quicker and more direct. But, the Dummit Fradin team elected not to avail themselves of a pretrial motion. By waiting and forcing the State to call the matter for a full trial they protected the clients from the State potentially appealing the motion to suppress in the future. Once a trial has commenced with the calling of the first witness, the 5th Amendment protects the client from the prosecutor appealing or retrial on a motion to suppress made during the trial.

Industrial Hemp Legalized in NC

To further explain how the law has changed in the last year, Clarke Dummit provided the Court with a brief explaining N.C. Gen. Stat 106-568.50 et seq. This statute legalized the production of industrial hemp in North Carolina. Under the direction of the North Carolina Industrial Hemp Commission, industrial hemp, a strain of the species Cannabis sativa can now be legally grown and sold by licensed parties.

The law excludes industrial hemp from the definition of marijuana which remains a controlled substance. The species Cannabis sativa includes both hemp and marijuana. As such, both contain the chemicals THC (delta-9 tetrahydrocannabinol, the primary psychoactive compound in marijuana) and CBD (cannabidiol, a non-psychoactive substance which has been linked to health benefits.

Hemp vs. Marijuana

The difference between hemp, which can be legally possessed and purchased, and marijuana, which remains a controlled substance under North Carolina law, is the differing amounts of CBD and THC in the plant. While marijuana has lower amounts of CBD and higher amounts of the psychoactive THC, hemp has low amounts of THC and higher amounts of CBD.

The only way to determine if a substance is hemp or marijuana is by testing the chemical composition to measure the THC level. There is currently no field test in North Carolina which can differentiate between hemp and marijuana. Additionally, the State Crime Lab lacks the ability to conduct this type of analysis for quantified levels of THC.

Charged with Possession of Marijuana in NC?

If you are facing a Possession of Marijuana charge or any criminal charge, have an experienced attorney review the facts and possible collateral consequences. Many times the collateral damage is more critical than the conviction or sentence. Many of our clients have Commercial Driver’s Licenses (CDLs), ABC permits, law, medical, or nursing licenses. Often they hold corporate jobs where even a minor conviction can wreak havoc on their career opportunities. While investing in a quality criminal defense can be expensive, the long term consequences of taking the cheap way out could have much more permanent and damaging consequences.

Contact us today for a free criminal defense consultation in Winston-Salem, Greensboro, or High Point. You’ll have the opportunity to get your questions answered and get a clear picture of the road ahead.