There have been several posts on this and related topics here and here. This post will attempt to compile all of the resources and walk attorneys through the process of making these challenges.
N.C. Gen. Stat. § 90-87(16) provides the statutory definition of marijuana, specifically excluding from its definition industrial hemp. Industrial hemp, as defined in Article 50E, Chapter 106 of the General Statutes, is not a controlled substance, and may be lawfully possessed by any citizen of North Carolina. By statute, industrial hemp contains a delta-9 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis. Legal hemp and marijuana are both cannabis sativa. The difference is simply the amount of THC in the plant material.
Measurement of the THC concentration must be done in a laboratory using validated methodology, such as HPLC and LC/MS analytical strategies. The NC State Crime Laboratory does not perform this type of analysis. Their procedures state in Section 6 that “[t]he current procedures at the North Carolina State Crime Laboratory do not allow for the differentiation of ‘marijuana’ from ‘hemp’, as defined in North Carolina General Statues.” There are private laboratories that can perform this test.
Just as a forensic chemist/lab analyst cannot determine if a plant contains >0.3 percent THC by looking at or smelling the plant, neither can a police officer. The NC State Bureau of Investigation produced a memo that specifies that it is not possible to distinguish legal hemp and marijuana by sight or smell:
Hemp and marijuana look the same and have the same odor, both unburned and burned. This makes it impossible for law enforcement to use the appearance of marijuana or the odor of marijuana to develop probable cause for arrest, seizure of the item, or probable cause for a search warrant.State Bureau of Investigation, Industrial Hemp/CBD Issues
The South Carolina Law Enforcement Division(SLED) has formally ended their Marijuana Analyst Certification/Recertification and Testing programs and directed officers who were trained to identify marijuana through sight, smell, and field testing to now submit samples to SLED Drug Analysis laboratory for quantitative analysis of THC. It is not scientifically possible to distinguish the amount of THC in a plant through sight or smell.
However, in many jurisdiction throughout NC, prosecutors continue to try to prove that a substance is marijuana through the testimony of a law enforcement officer who identifies the plant material by sight or smell. Their argument has been that State v. Fletcher, 92 N.C. App. 50 (1988) allows an officer to provide this testimony because the officer is more qualified than the jury to form an opinion about whether plant material is marijuana. The update of Rule 702(a), North Carolina’s adoption of the Daubert standard in State v. McGrady, 368 N.C. 880 (2016), and the legalization of industrial hemp under N.C.G.S. 106-568.50 et seq. make any testimony of a police officer identifying a substance as marijuana based upon sight or smell inadmissible as it fails to meet the requirement that an expert’s testimony be based on reliable principles and methods.
Defenders should challenge such testimony using a 702 motion like this one. In many NC cases, charges have been dismissed only when the case is proceeding to trial and a defense expert is present to offer testimony about the unreliable methodology being presented by the state.
Defenders representing indigent clients can seek funding for expert assistance using the AOC-G-309 form and an ex parte motion like this one. If the attorney has been hired, but the client cannot afford to hire an expert, the attorney can move to have the client declared indigent for purposes of expert assistance. A sample motion is available here.
Attorneys who need to find an expert can contact the IDS Forensic Resource Counsel for assistance. An expert should be able to provide a report or affidavit like this one.
If the “odor of marijuana” was used to develop probable cause, defenders should consider challenging probable cause using a motion like this one.