Originally posted on Nov. 12, 2019 on the North Carolina Criminal Law blog.
The advent of cannabis legalization across the country has led to a proliferation of new types of cannabis products. There are skin patches, food and drinks (for humans and pets), vaporizer or “vape” cartridges (or “carts”), and different concentrate or extract products (“dabs”, “wax” or “shatter”, among other names). [Click that last link and scroll down to see a chart listing the different forms of extracts and their names.] The products can be made from lawful hemp, or from illegal marijuana alike. The illegal versions have found their way into North Carolina, and questions abound regarding how to handle these cases. The questions most commonly involve wax and cartridges, so this post takes a look at the issues surrounding those cases (leaving the skin patches and edibles for another day).
Probable Cause and Extracts. Just as law enforcement and trial courts have a hard time distinguishing smokable hemp from marijuana for purposes of probable cause (discussed here), the same issues arise with extract products. Simply put, the sight or odor of these products may not be enough for probable cause, because there are hemp and marijuana versions of all of them. They cannot be distinguished from one another without a lab showing quantified levels of THC—a test our state and local crime labs aren’t performing. Traditionally, crime labs only test for the presence of THC, and both legal hemp-based products and the illegal marijuana products will produce a positive result. The situation is even more complicated than trying to tell raw marijuana from hemp, because there are even more legal versions of these products that can be confused with the illegal version. Marijuana vape cartridges won’t necessarily smell like marijuana when consumed, just like nicotine vapes don’t smell like cigarettes. To further complicate the situation, empty cartridges are widely available, to be filled with anything from nicotine vape juice to CBD to marijuana oil to Pine-Sol™, if one is so inclined. There’s also a market for marijuana vape cartridge packaging, which can be purchased and attached to cartridges of one’s own making. [As a quick aside, there are indications that the mysterious vaping disease in the news is the result of improperly manufactured and counterfeit marijuana vape cartridges, according to the FDA.]
What’s Law Enforcement to Do? When imported from a marijuana-legal state, these products may arrive in packaging identifying the substance as containing marijuana extract oil or otherwise denoting higher than legal levels of THC. If the products are so labeled, law enforcement is probably on solid footing to seize the product and charge the suspect. Outside of packaging, law enforcement might rely on an admission by the defendant that the product contains marijuana, or signs of impairment to establish probable cause. In light of the counterfeits, the label or admission may prove inaccurate at the end of the day, but these circumstances—packaging, an admission, or signs of marijuana impairment—likely meet the standard for probable cause. Just like with hemp, it seems that a field test or canine alert adds nothing to the probable cause calculus here (and therefore doesn’t justify a search), because THC is detectable in both legal hemp and illegal marijuana. Where there’s no admission and no other signs that the product is one thing or the other, it seems law enforcement will lack probable cause to seize, search, or arrest based solely on the sight of a wax product or cartridge, because it isn’t immediately apparent that the product is contraband. [A pair of Texas lawyers offer advice to clients on the issue of admissions via song here, starting at the 1:00 minute mark.]
What’s the Charge? Assuming officers have probable cause, what is the appropriate charge for these products? Here’s our existing law on marijuana extracts in pertinent part:
If the quantity of the controlled substance exceeds . . . one-twentieth of an ounce of the extracted resin of marijuana, commonly known as hashish, the violation shall be punishable as a class 1 misdemeanor. If the quantity of the controlled substance exceeds . . . three-twentieths of an ounce of extracted resin of marijuana . . . or if the controlled substance consists of any quantity of synthetic tetrahydrocannabinol or tetrahydrocannabinols isolated from the resin of marijuana, the violation shall be punishable as a class I felony. (emphases added) G.S. 90-95(d)(4).
Is the stuff in wax and cartridges the “extracted resin of marijuana”? Or the more serious offense of possessing “THC isolated from the resin”? Just regular marijuana? We don’t have any cases on the issue, and it’s a fair assumption that when this law was written, these products were not yet in existence (or at least not widely available). Some jurisdictions in North Carolina have charged the felony for possession of a single cartridge, on the apparent theory that it qualifies as isolated THC. I’m skeptical.
Concentrated, But Not Isolated. My suspicion is that most of these products are extracted resin, not isolated THC. True, they aren’t “hash” in the traditional sense. But they also aren’t isolated THC, despite the seemingly widespread use of the term “THC cartridges” to refer to the products. I believe most of these are more properly considered marijuana or hash extract products, and “THC cartridge” is a misnomer. At the “cartridges” link above, you can see examples of marijuana vape pen oils. Most contain a higher-than-average dose of THC . . . but not “pure” THC. As I understand it, the oil in cartridges is created by an extraction process that removes the resin from the plant, and the product is further refined from there to create an oil or wax that can be ingested by the end user. Different extraction processes produce different extract products. These processes concentrate the cannabinoids to higher levels than what would be found in the raw flower (or “bud”). At the end of the day, the THC has been concentrated to a higher level, but along with that concentrated THC comes all the other cannabinoids present in the mix, at least with the most common extraction methods. If that’s right, a plain reading of the statue suggests these products do not qualify as “isolated” THC, because of the presence of other compounds. In other words, “isolated” should likely be read as “to the exclusion of all other compounds; pure.” Under that definition, most vape pens and wax products probably do not qualify for the more serious felony charge of possession of isolated THC.
Um, Fractions? For everything other than isolated THC, the charge is also determined by the weight. I for one did not choose law as a career because of my math skills, so I thought this list of relevant weights might be helpful.
1/20 ounce = 1.41 grams
3/20 ounce= 4.25 grams
1000 milligrams = 1.0 gram, or 7/200 of an ounce (or 0.035 oz.)
Determining weight is easier with a “wax” extract product—just weigh the product as normal. If the wax weighs under 1/20 of an ounce, the appropriate charge is the class 3 misdemeanor for simple possession of marijuana—possession of extracted resin only becomes a class 1 misdemeanor over 1/20 of an ounce. This is consistent with the statutory language above, as well as the definition of marijuana in G.S. 90-9-87(16) (“all parts of the plant . . . [including] the resin extracted from the plant”). Between 1/20 of an ounce and 3/20 of an ounce, the proper charge is the class 1 misdemeanor for extracted resin. More than 3/20 of an ounce of wax supports a felony charge for possession of extracted resin.
Cartridges are a little trickier since the oil has to be removed and weighed. Single cartridges typically contain between 250 milligrams to 1000 milligrams of oil. Even at the 1000 milligram amount, that only equates to around 7/200 of an ounce (1.0 grams). That’s less than 1/20 of an ounce and should probably be charged as the class 3 misdemeanor. Between 1/20 an ounce and 3/20 an ounce of cartridge oil, the proper charge is the class 1 misdemeanor. It would take around 4200 milligrams to meet the 4.25-gram weight threshold for felony possession here—a little more than four full 1000 mg cartridges.
The weight limit for felony liability for possession of regular marijuana is over 1.5 ounces; under ½ oz. (14 grams), the offense is a class 3 misdemeanor. As the law stands, the weight to get to felony possession for extracts is much lower than for regular marijuana. But, a single 1000 mg. cartridge or small amount of wax (under 4.25 grams) doesn’t appear to trigger felony liability. Of course, if a person is in possession of large amounts of these things, or where other circumstances indicate the person is distributing or manufacturing the substance, he or she can be charged with the appropriate felony.
What Is THC “Isolated from the Resin”? To be clear, isolate cannabinoids do exist. Here’s an example of isolated THCA (a cannabinoid that converts to THC with heat), and here’s an example of isolated CBD. The compounds apparently crystallize in pure form and are sold as either raw crystal (or “diamond”) or in powder form. Like with the wax products and cartridges, it’s unclear to me how an officer can determine which is legal and which is not before laboratory testing can be completed absent some other evidence. It’s also unclear to me how popular or widespread these are. But as far as I can tell, this stuff is something different than what’s in most extract or cartridge products. At a minimum, the extraction process used to create it seems to require more sophisticated equipment and a more involved process. Pure “THC” products may be around, or coming, but my suspicion is that most extract products are made from concentrated resin of the whole cannabis plant, not (just) purified THC. In any event, a lab would again be needed to make that determination of what’s pure THC.
Are you seeing these products in your jurisdiction? How are they being treated by law enforcement and in the trial courts? Has anyone seen pure THC, or pure THC oil in cartridge form? How’s my math? Post a comment below and let me know.