Carolina Criminal Defense & DUI Lawyer UpdatesUnder North Carolina law, “marijuana” is a controlled substance defined to exclude legal hemp. Following the 2018 federal Farm Bill, NC amended its statutes to align with the 0.3% THC 
threshold. Specifically, hemp is defined as cannabis (any part of the plant, including derivatives) with ≤0.3% delta-9 THC by dry weight. Marijuana covers cannabis plants or extracts except those meeting the hemp definition.
In effect, cannabis with more than 0.3% THC is illegal “marijuana,” while cannabis at or below 0.3% THC is legal hemp. This distinction can be critical in criminal cases – it means a defendant should not be convicted of a marijuana offense for possessing hemp. However, because hemp and marijuana look and smell identical, this threshold poses challenges in court.
Juries may benefit from guidance to avoid conflating legal hemp with illegal marijuana. Defense attorneys have increasingly sought jury instructions to clarify this 0.3% THC requirement as part of the definition of the crime.
We will examine North Carolina case law on crafting jury instructions, how courts have treated the THC threshold issue, defense strategies for requesting such instructions, sample language to propose, and legal arguments to support the request. If you have questions about your individual legal matter, Powers Law Firm may be able to help. Call or TEXT now to schedule a confidential consultation: 704-342-4357. We help clients in the Charlotte metro region, including Mecklenburg, Iredell, Union, and Gaston Counties.
0.3% THC: Jury Instructions & Judicial Discretion
North Carolina courts have a well-defined framework for jury instructions, including for criminal cases involving controlled substances. Trial judges should instruct the jury on the essential elements of the offense and any affirmative defense supported by the evidence.
While pattern instructions exist for most drug offenses, judges have discretion to give special instructions when appropriate to reflect the law. Generally, if a defendant requests a special instruction that is supported by both the law and the facts, the trial court must give the substance of that instruction (though not necessarily in the exact words requested)
A correctly formulated instruction supported by evidence should be included. If the requested instruction contains any error in law or fact, however, the court may refuse it. In practice, trial judges often rely on NC Pattern Jury Instructions, but they can modify or supplement them in their discretion to fit unusual circumstances.
Notably, in State v. Parker (2021), the Court of Appeals reiterated these principles when a defendant requested special instructions on his knowledge of the specific substances he possessed. The trial judge denied those requests and gave the pattern instruction, and the appellate court found no error. However, citing State v. Roache, the court indicated it was mindful that “[i]nstructions that as a whole present the law fairly and accurately to the jury will be upheld,” and further that “one isolated piece that might be considered improper or wrong on its own will not be found sufficient to support reversal.” State v. Roache , 358 N.C. 243, 303-11, 595 S.E.2d 381, 419-24 (2004).
Judges possess leeway in wording, but are to cover the substance of applicable law. Thus, when a legal distinction (like the 0.3% hemp threshold) could substantively affect guilt or innocence, a tailored instruction may be warranted if the standard pattern doesn’t address it.
Key Takeaway: NC case law holds that a defendant is entitled to an instruction on a specific defense or definition if (a) it’s a correct statement of law, and (b) there is evidence supporting it. This sets the stage for requesting a jury instruction about the 0.3% THC threshold in a marijuana prosecution.
Is Proof of 0.3% THC Content Required in the NC Pattern Jury Instructions?
North Carolina appellate decisions have yet to explicitly require a trial court to instruct the jury that 0.3% THC concentration must be proven beyond a reasonable doubt in a marijuana case. The question has only arisen relatively recently, as hemp legalization blurred the line between legal and illegal cannabis.
To some extent, our courts have acknowledged the issue but stopped short of mandating a specific instruction on THC percentage. For example, State v. Parker noted that the legalization of hemp raised novel issues and that prior precedents (e.g. allowing identification of marijuana by sight or smell alone) may need to be re-examined in light of identical-looking hemp
However, because the facts of that case provided additional evidence beyond mere odor or appearance, the Court of Appeals did not specifically address whether proof of THC content is required. The court explicitly said it need not determine if the sight or smell of marijuana alone still suffices for probable cause post-hemp legalization– implying the broader issue of proof at trial remains open.
In State v. Teague (2022), a case that squarely raised the hemp distinction, the defendant argued that his indictment and conviction for THC-related offenses were invalid absent proof the substances exceeded 0.3% THC. The Court of Appeals rejected a requirement to plead or prove THC concentration in that case – but importantly, the decision turned on the type of substance involved.
Teague allegedly possessed cannabis extracts (“shatter”/wax), which the court found did not even fall under the legal definition of “industrial hemp.” The court noted that hemp in NC was limited to parts of the plant grown by a licensed hemp producer with ≤0.3% THC. The resinous extracts in Teague’s case contained no plant material and were not from a licensed source, so by definition they could not be legal hemp. Because the substance was outside the hemp exception, the court held the State “was not required to present evidence that the substance contained 0.3% or more of THC” in order to convict.
Teague did not necessarily establish a general rule for all marijuana cases, since the facts essentially bypassed the hemp issue. The court did, however, cite N.C. Gen. Stat. §90-113.1, which by implication provides that the State need not negate any exception in the Controlled Substances Act and the burden of proving that a controlled substance is lawfully possessed is on the defendant. This suggests that if a defendant claims the cannabis was hemp (a lawful substance), the onus is on the defense to raise that issue.
As of yet, there does not appear to be an NC appellate opinion to date that has directly addressed a scenario where the accused possessed raw plant material that could be hemp. Thus, there isn’t a controlling case saying a jury must be instructed to find THC >0.3%. But the trend in related jurisprudence (and in other jurisdictions) indicates courts could view the ≤0.3% THC status as a somewhat unique exception or possibly an affirmative defense rather than an element the prosecution must always prove.
For instance, the federal analog (21 U.S.C. §885(a)(1)) was applied in U.S. v. Rivera, where the Third Circuit upheld a conviction because the defendant failed to introduce any evidence that the seized cannabis was hemp. The court held that the government didn’t have to prove THC content since Congress placed the burden on the defendant to come forward with evidence that an exception (hemp) applied. North Carolina’s hemp statute is virtually the same.
Key Takeaways for Defense Lawyers:
NC courts have acknowledged the 0.3% threshold issue, but none has yet to explicitly rule on a required jury instruction about it. The likely interpretation is that hemp is a statutory exception which the defendant must raise. If the defendant presents evidence the substance might be hemp, the issue would likely go to the jury in some form. Absent such evidence, courts have been content to allow convictions based on traditional identification methods.
Defense counsel should be proactive in requesting an instruction to help ensure the jury understands the legal definition of marijuana versus hemp. It’s an evolving area – and a well-crafted jury charge could protect the record and potentially sway the outcome if jurors harbor doubt about the 0.3% THC level.
Defense Strategies for Requesting a Marijuana vs Hemp Jury Instruction
Criminal defense attorneys in North Carolina may wish to take a multi-pronged approach when seeking a jury instruction on the 0.3% THC threshold. The goal is to both educate the judge on why the instruction is necessary and ensure there is enough evidence in the record to justify giving it. That may include:
Building an Evidentiary Basis for Addendum to Pattern Jury Instruction
Introduce some evidence that the substance could be hemp, to ensure a jury instruction is factually supported. This might involve calling an expert witness to explain that hemp and marijuana are indistinguishable by look or smell and that only a lab test can measure THC content. For example, a forensic chemist or botanist might be able to testify that cannabis with low THC (hemp) looks and smells the same as illegal marijuana. On cross-examination of the State’s witnesses, the defense would seek to elicit admissions that no quantitative THC test was performed or that the officer cannot tell hemp from marijuana by appearance. Such testimony may lay the foundation to argue that reasonable doubt exists about whether the substance was over the legal 0.3% THC limit. The School of Government suggests this type of expert evidence might be used in a suppression motion or to contest a drug identification at trial, and notes that a special jury instruction on the hemp and marijuana issue might be sought when legally and factually appropriate. In short, create a record that the issue is real and not speculative.
Request Judicial Notice of the Law
File a pretrial motion asking the court to take judicial notice of the NC hemp laws and the definition of marijuana. The judge can acknowledge (outside the jury’s presence initially) that as a matter of law hemp is legal and excluded from the definition of marijuana. By doing this early, you may be able to frame the issue for the court and signal that the jury charge must incorporate this distinction. Attach copies of N.C. Gen. Stat. §§ 90-87(13a) and (16) (the definitions of hemp and marijuana) and the Controlled Substances Act amendment excluding hemp. Emphasize that the jury cannot determine guilt accurately without understanding these definitions.
Submit a Written Special Jury Instruction
Draft a proposed jury instruction that clearly defines marijuana in contrast to hemp and sets out the 0.3% THC threshold. Submitting it in writing (ideally at the charge conference or earlier) makes sense. Under NC law, a written request preserves the issue for appeal and puts the exact language on record. Your request should cite the statute and any case law or pattern instruction references to show it’s a correct statement of law. For example, reference the pattern jury instruction’s note that the defendant bears the burden on exemptions, but also cite State v. Nicholson , 355 N.C. 1, 67, 558 S.E.2d 109, 152 (2002) (court must instruct on law supported by evidence). By providing the text, you make it easier for the judge to adopt it or at least you ensure the refusal is properly addressed on the record.
Argument for Proposed Jury Instruction at Charge Conference
When discussing jury instructions with the judge (during the charge conference), be prepared to argue why the instruction is necessary and appropriate. Point out that without it, the jury might convict even if they think the substance could have been hemp, because they won’t realize that would not be a crime. Stress that the definition of the crime has changed: what was once automatically illegal “marijuana” now depends in part on 0.3% THC content. You might say, “Your Honor, the jury needs guidance on the legal definition of marijuana. Otherwise, they could find my client guilty for possessing a substance that is not actually illegal under North Carolina law.” Draw an analogy to prescription drugs: if the State alleges illegal possession of a controlled pill, the jury is instructed to acquit if they find the defendant had a lawful prescription – the same principle could apply with hemp in appropriate circumstances. By framing it as an essential element (illegal THC level) versus an exception, you invoke the principle that the jury must decide every fact that distinguishes guilt from innocence.
Refer to the SBI Memo or Legislative Findings (if admissible)
In some cases, defender lawyers have introduced the SBI’s memo acknowledging the inability of officers to distinguish hemp from marijuana. If you have a witness who can authenticate it (or via a public-records exception), this memo may reflect the need for careful jury consideration. Even if the memo itself isn’t evidence, you might be able to address it in expert testimony or cross-exam (e.g., “Are you aware the State Bureau of Investigation determined that without lab testing, you can’t visually tell hemp from marijuana?”). This supports giving the jury an instruction to weigh the possibility of hemp.
Preserve the Issue for Appeal
If the judge refuses to give the instruction or gives an inadequate one, object on the record. Even if overruled, your objection (coupled with your written request) preserves it for appeal. This is important because this area of law (marijuana vs hemp) is evolving, and a higher court may later decide that omitting a hemp instruction is reversible error. Preservation could benefit not only your client but clarify the law for future cases.
By implementing these strategies, the defense sets the stage for the court to grant a jury instruction defining marijuana vs hemp. Even if the prosecution argues that hemp is an affirmative defense, you may have put forth enough evidence to entitle the jury to consider that defense. North Carolina law holds that when a defendant presents evidence supporting a defense (like lawful possession), they are entitled to an instruction on it. The key is making the hemp theory plausible in the jury’s eyes and clearly proposing how the jury should be instructed on the law.
Sources:
- N.C. Gen. Stat. § 90-87(13a), (16) (defining “hemp” and excluding it from “marijuana”)
ncleg.net
. - N.C. Gen. Stat. § 90-113.1(a) (State need not negate exceptions; defendant bears burden of showing lawful exception) casetext.com.
. - UNC School of Government, Phil Dixon, “Hemp or Marijuana?” (2019) (suggesting use of experts and possibility of special jury instructions on hemp) nccriminallaw.sog.unc.edu
- NC Pattern Jury Instr. – Crim. 260.10 (Notes on G.S. 90-113.1 and sample instruction for statutory exemptions in drug cases) sog.unc.edu
- SBI Memo (2019) on Hemp/Marijuana (noting law enforcement cannot distinguish hemp from marijuana by sight or smell, complicating prosecutions).
Navigating the legal complexities surrounding North Carolina’s 0.3% THC threshold and distinguishing marijuana from legal hemp requires nuanced strategies, experienced advocacy, and precise jury instructions. If you’re facing marijuana-related charges or have questions about how the hemp laws may affect your case, we may be able to help.
Call attorney Bill Powers today at the Powers Law Firm at 704-342-4357 or email Bill@CarolinaAttorneys.com for thoughtful guidance, dedicated advocacy, and experienced representation when it matters most.