Carolina Criminal Defense & DUI Lawyer UpdatesThe North Carolina Court of Appeals’ recent decision in State v. Ruffin, ___ N.C. App. ___ (Mar. 5, 2025), provides 
guidance on marijuana identification in the post-hemp era. The defendant in Ruffin was convicted of multiple drug offenses, including the sale and delivery of marijuana, arising from a controlled buy in 2021.
On appeal, the accused challenged the identification of the seized plant material as marijuana (arguing it could have been legal hemp), the admissibility of both lay and expert testimony under the North Carolina Rules of Evidence, the sufficiency of the evidence to distinguish marijuana from hemp, the trial court’s jury instructions, and several aspects of his sentencing
The Court of Appeals affirmed the convictions and sentences. This article analyzes Ruffin and its implications for North Carolina law, with specific reference to Rule 702 Testimony by Expert Witnesses.
Marijuana Identification in North Carolina
Statutory Definitions – Marijuana vs. Hemp
A threshold issue in Ruffin was the definition of “marijuana” under North Carolina law, given the legalization of industrial hemp. Under current statutes, “marijuana” is defined as “all parts of the plant of the genus Cannabis, whether growing or not; … but the term does not include hemp or hemp products.”
North Carolina law defines “hemp” as cannabis containing no more than 0.3% delta-9 THC by dry weight. This distinction was added to the Controlled Substances Act after the expiration of the Industrial Hemp pilot program in 2022, to ensure hemp (low-THC cannabis) remains legal while marijuana (higher-THC cannabis) is still a controlled substance
What is Trafficking Marijuana?
In practical terms, the State must prove that a seized cannabis plant material exceeds the 0.3% THC threshold (i.e. is marijuana and not hemp) to obtain a conviction for a marijuana offense. However, as discussed in Ruffin, the law does not always require chemical quantification of THC so long as other evidence sufficiently identifies the substance as marijuana.
Lay Marijuana Identification by Law Enforcement: N.C. Rule of Evidence 701
North Carolina courts have long allowed experienced police officers to identify marijuana based on its appearance, texture, and odor, treating such testimony as lay opinion admissible under N.C. Rule of Evidence 701. In Ruffin, a sheriff’s narcotics detective testified that, based on his training and years of experience, the green leafy substance sold by the defendant appeared to be marijuana.
The officer also observed the defendant rolling what looked like a marijuana blunt and heard him refer to an “eighth” (slang for 1/8 ounce of marijuana) during the drug deal. The defense argued that such visual identification has become unreliable after hemp’s legalization, pointing to State v. Ward, 364 N.C. 133 (2010), where the N.C. Supreme Court held that with pharmaceuticals, the State generally must present a chemical analysis unless another reliable method identifies the substance.
Distinguishing State v. Ward (2010) in the Post-Hemp Era
The Court of Appeals in Ruffin rejected this argument and distinguished Ward, noting that Ward’s holding “is limited to North Carolina Rule of Evidence 702” (expert testimony) and did not abolish lay identifications of marijuana.
Indeed, the Court emphasized that “the standard for lay opinion testimony under Rule 701…is unchanged in light of Ward.” Both before and after hemp’s emergence, several cases have upheld that a police officer with appropriate experience may testify that a substance is marijuana based on visual/sensory recognition. For example, the court cited decisions in which officers’ identification of green plant material as marijuana was deemed sufficient, even without lab tests.
What is Marijuana Paraphernalia?
A 2022 case (State v. Highsmith) acknowledged that hemp’s legality has spurred debate about using sight or smell alone for probable cause, there is no per se rule forbidding officers from testifying to an object’s identity as marijuana at trial. In Ruffin, the admission of the detective’s lay opinion was held not to be error, as it was rooted in his firsthand observations and the officer’s knowledge base.
The court thus reaffirmed that under N.C. evidentiary law, an officer’s identification of suspected marijuana is admissible lay testimony, and the differences between hemp and marijuana go to the weight of the evidence rather than its admissibility.
Forensic Expert Analysis of Marijuana: N.C. Rule of Evidence 702
In addition to the officer’s lay opinion, the State in Ruffin presented a forensic chemist from the State Crime Lab who tested the seized plant material. They testified as an expert in drug identification (pursuant to N.C. R. Evid. 702) that the substance was “plant material belonging to the genus Cannabis containing tetrahydrocannabinol (THC),” although “concentration of cannabinoid [was] not determined.”
On cross-examination, the expert acknowledged that the Crime Lab “currently [does] not have the ability to distinguish between marijuana and hemp” because that would require a quantitative THC analysis not performed in routine drug screening. When asked if the sample could have been hemp, she answered, “It’s possible. Yes.”
What are “Controlled Substances?”
Despite this concession, the expert maintained, based on the standard battery of tests, that the material was cannabis and thus presumptively marijuana. The testing protocol in Ruffin mirrored the Crime Lab’s established procedures:
- Weighing the plant material
- Performing a macroscopic (visual) examination
- Conducting a preliminary colorimetric test
- Examining the sample under a microscope
- Administering a confirmatory chemical test Duquenois-Levine color reaction).
These methods can confirm the presence of cannabinoids and characteristics of marijuana (such as botanical features visible under magnification), but do not measure the percentage of THC.
Chemical Analysis & Marijuana Identification
Notably, North Carolina law does not currently require a quantitative lab test to prove a substance is marijuana. The Controlled Substances Act has excepted marijuana from the requirement of a chemical analysis that applies to other drugs. As the Court of Appeals explained, although Ward demanded laboratory proof for certain pills.
While a better practice, the State is not necessarily required to submit marijuana for chemical analysis to obtain a conviction. In Ruffin, even though the State did introduce lab testing, the results did not distinguish hemp vs. marijuana by THC level.
This did not render the evidence inadmissible or insufficient; rather, it created a fact question for the jury. The combined testimony of the officer and the chemist—when considered alongside the context (a hand-to-hand drug sale for cash, the defendant’s use of marijuana jargon, etc.)—provided enough evidence that the substance was illicit marijuana and not hemp.
Rule 702 and Expert Testimony (Daubert Standard)
N.C. Rule of Evidence 702(a)
The defense in Ruffin argued that the forensic chemist’s expert testimony should have been excluded under N.C. R. Evid. 702, which governs the admissibility of expert evidence in North Carolina.
Rule 702(a), codified at N.C.G.S. § 8C-1, Rule 702(a), adopts the three-pronged Daubert standard, requiring that (1) the expert’s testimony be based on “sufficient facts or data,” (2) be “the product of reliable principles and methods,” and (3) the witness has “applied the principles and methods reliably to the facts of the case.”
North Carolina formally adopted the Daubert reliability test for expert evidence in State v. McGrady, 368 N.C. 880 (2016), aligning state practice with federal Rule 702.
Trial judges thus act as gatekeepers who must ensure expert testimony is relevant and reliable. The primary focus is on the expert’s principles and methodology, not the conclusions reached. The reliability inquiry is flexible (“vary[ing] from case to case”) and the trial court has wide discretion in how to apply the three prongs.
In a criminal case, if a defendant does not object to the expert at trial, any challenge on appeal is reviewed only for plain error, a difficult standard requiring a showing that an error was fundamental and likely affected the verdict.
Application in Ruffin – Crime Lab Marijuana Protocol
In Ruffin, the chemist’s testimony went unchallenged at trial, but on appeal the defendant contended that her methods were unreliable under Rule 702(a) (essentially a Daubert challenge raised belatedly).
The Court of Appeals disagreed, finding the expert’s identification of the substance as marijuana met the Rule 702 standard. The court noted that the expert followed the established Crime Lab procedures for marijuana, which have been approved in prior cases.
In State v. Abrams, 248 N.C. App. 639 (2016), the Court of Appeals had upheld an expert’s testimony where the analyst identified marijuana by weighing the material, performing a microscopic examination, and conducting the Duquenois-Levine chemical color test. Those steps were deemed reliable methods for distinguishing marijuana from other substances.
Likewise in Ruffin, the analyst testified that they: (1) weighed the plant material, (2) performed a macroscopic (visual) inspection, (3) conducted a preliminary chemical color test for cannabinoids, (4) carried out a microscopic examination (to observe telltale features like cystolithic hairs on the leaves), and (5) ran a confirmatory test (another chemical reaction test).
Based on this multi-step analysis, the analyst concluded the material was Cannabis containing THC (without measuring the percentage). This process, the court held, “substantially matches that approved of by this Court in [State v. Abrams]” and other cases.
NC Drug Laws: What You Need to Know
North Carolina precedent has “consistently approved of similar procedures” for marijuana identification. The court further reasoned that even though the lab did not quantify THC, North Carolina’s evidentiary rule has never required quantification to simply identify the substance as marijuana.
Quantification would be necessary only if the law treated THC level as an element of the offense – but under N.C.G.S. § 90-95, the offenses of manufacturing, selling or delivering a Schedule VI controlled substance (marijuana) do not specify a potency threshold; marijuana is contraband per se (with hemp excluded by definition). Therefore, an expert’s inability to rule out hemp goes to the weight of the evidence, not admissibility. In sum, the Court of Appeals found that the State’s expert used reliable methods and applied them properly, satisfying Rule 702(a).
There was no abuse of discretion or plain error in admitting her opinions. Ruffin confirms that, under Daubert, the standard marijuana analysis techniques (which are qualitative in nature) remain acceptable in North Carolina courts. Defense counsel should be aware, however, that as forensic technology evolves, future cases might require or at least prefer quantitative testing when the only issue is hemp versus marijuana. For now, Ruffin reaffirms that an expert can testify that a substance is marijuana (as defined by law) based on the typical combination of botanical and chemical tests, even if the exact THC concentration is undetermined.
If you are facing serious felony drug charges in Mecklenburg, Union, or Iredell counties, Powers Law Firm may be able to help. Our firm also assists clients in Charlotte with misdemeanor drug charges, including simple possession and possession of drug paraphernalia. To schedule a confidential consultation, call 704-342-4357 today.