Carolina Criminal Defense & DUI Lawyer UpdatesHelping explain the 0.3 THC threshold and marijuana vs hemp issues to the jury likely necessitates a jury instruction that adds important language to pattern jury instruction that fully and accurately reflects the definition of 
hemp consistent with N.C.G.S. 90-87, NC PJI 260.10, NC PJI 260-15, NC PJI 260.17 et al, and North Carolina v. Ruffin. To that end, it’s helpful to provide specific proposed language to the Court to address the 0.3% THC threshold during the charge conference.
Obviously, whether that’s necessary and/or appropriate depends on the fact pattern and must be tailored to case specifics. To be clear, there is more involved than THC concentration, particularly as it may pertain to cannabis concentrate (“shatter”). Courts are still addressing how to apply these legal distinctions.
At Powers Law Firm, we help clients navigate these issues in court. If you have questions about how hemp laws may impact your case or are facing marijuana-related charges, TEXT or call attorney Bill Powers at 704-342-4357 or email Bill@CarolinaAttorneys.com to discuss your situation.
Sample Proposed Special Jury Instruction – Definition of Marijuana (Hemp Exception)
Under North Carolina law, not all cannabis is illegal. The term “marijuana” generally refers to cannabis that contains more than 0.3% delta-9 tetrahydrocannabinol (THC) on a dry-weight basis. Cannabis that contains 0.3% THC or less could, in appropriate circumstances, be defined as “hemp” and, therefore, not a controlled substance. To that end, the following is suggested language to supplement NC Pattern Jury Instructions regarding possession of controlled substances.
Sample Language for Consideration by the Court:
In order to convict the defendant of a marijuana offense, you must find beyond a reasonable doubt that the substance in question was marijuana and not hemp. This means the State must prove the substance had a THC concentration above 0.3%. If you conclude that the State has failed to prove the substance contained more than 0.3% THC – or if you have a reasonable doubt about whether the substance was actually hemp – then you must find the defendant not guilty. If you find that the substance was hemp (0.3% THC or less), the defendant’s possession was lawful, and he is not guilty of this charge.
This proposed instruction does several important things:
- It informs the jury of the 0.3% rule by quoting the legal definition;
- It explicitly states that finding the material was hemp requires an acquittal; and,
- It places the burden on the State to prove every element of an offense must be proven beyond a reasonable doubt.
The phrasing “or if you have a reasonable doubt about whether the substance was actually hemp” better ensures that even if the jury isn’t convinced it was hemp, the lingering possibility counts in the defendant’s favor (which is consistent with the purpose, meaning, and spirit of “proof beyond a reasonable doubt”).
However, be aware the prosecution might object to placing a burden on the State to disprove the hemp exception, citing N.C.G.S. 90-113.1. As a fallback, you could propose a slightly different wording to reflect an affirmative defense posture.
Alternate Proposed Instruction (Affirmative Defense Framing)
The defendant contends that the substance was hemp, not marijuana. Hemp is cannabis with 0.3% THC or less and is not illegal. If you find that the substance in question was in fact hemp, then it would not be an unlawful controlled substance and you must return a verdict of not guilty.
[Judge could also add:] The burden is on the defendant to satisfy you that the substance was hemp. However, if the evidence leaves you uncertain whether the substance was hemp or marijuana, you must resolve that doubt in favor of the defendant and find him not guilty.
This alternate language explicitly tells the jury what to do if they find the defense claim credible. Note that North Carolina’s pattern instructions for controlled-substance exemptions (like lawful possession by an officer or prescription holder) use a similar approach: asking for an instruction that “if you find the defendant was [in lawful status], the defendant’s possession was lawful and you should return a not guilty verdict.”
In those pattern jury instructions, the jury isn’t told a specific burden of proof for the exemption, but by finding the exempt status, the jury, in effect, must be convinced of it. The same structure might be applied to hemp. Indeed, it makes sense to include the actual statutory definitions within the instruction (as above) so the jurors hear the precise language: e.g., “The term marijuana does not include hemp, which is defined as … (0.3% THC or less)….”
Jurors tend to trust direct quotes from the law, and it might avoid an argument that the instruction misstates the threshold. Cite the statute (G.S. 90-87(13a) & (16)) in your written request, providing the court with the legal basis for the proposed language. By offering a clear, concise definition and a directive tied to the verdict (“must find not guilty if…”), you give the court a ready-made instruction that covers the critical point.
Legal Arguments to Support a 0.3% THC Threshold Amended Jury Instruction
To persuade the court to adopt a hemp-specific jury instruction, defense counsel should marshal both statutory authority and case law analogies. Some potential helpful arguments and reasoning behind supporting the request for amending the Pattern Jury Instruction include:
“Marijuana” Definition: Now an Essential Element
Emphasize that under current law, the crime of marijuana possession (or sale, etc.) inherently includes the THC content element.
The statutory definition does not include hemp or hemp products. Therefore, the identity of the substance (hemp vs. marijuana) is fundamental to guilt or innocence.
North Carolina v. Hart can be instructive regarding the strict construction of criminal statutes. The law in effect at the time of offense defines the elements. After June 2022, NC law permanently excluded hemp from the Controlled Substances Act.
Thus, possessing hemp is no longer a crime at all.
The jury instruction should reflect the law’s current scope: just as a jury must be told that a “deadly weapon” is required for armed robbery or a certain weight is required for trafficking, they should be told that >0.3% THC is required for the substance to be illegal.
If the pattern instruction hasn’t caught up to this definition, a special instruction fills that gap. This argument frames the THC threshold as part of the State’s burden to prove the substance is illegal. You may be able to bolster this by pointing to language in North Carolina v. Parker suggesting prior assumptions (like visual identification sufficing) are now questionable given that hemp is legal.
Right to Instruction on Defense Theory
Even if the court views hemp as an “exception” rather than an element, North Carolina law still entitles a defendant to an instruction on any defensive theory with support in the evidence.
There is a long line of cases (e.g., self-defense in assault cases, lawful justification in possession cases) holding that a defendant is entitled to have the jury consider his lawful excuse or exception if evidence (even from the State’s witnesses or circumstantial) supports it.
For instance, if evidence suggests the substance might be below 0.3% THC (perhaps the lack of a proper lab test or testimony about the prevalence of hemp), then the jury could find it was hemp.
A written request coupled with some supporting evidence is sufficient to require the jury to be charged on that issue.
You might analogize it to a prescription drug case: if a defendant is charged with possessing Oxycodone but presents a valid prescription bottle in his name, the jury must be instructed to acquit if they find the prescription legit.
Hemp is analogous – it is a lawful status of the substance. NC Pattern Instruction 260.10 (possession of controlled substance) explicitly acknowledges N.C.G.S. 90-113.1 Burden of Proof and provides sample language for certain exemptions (like law enforcement possession). Adapt that language to hemp. This could prove helpful in showing the request is grounded in how NC already handles controlled substance exceptions.
What is Possession with Intent to Manufacture, Sell, or Deliver?
Constitutional Fairness and Burden of Proof
For a more constitutional approach, argue that not instructing the jury about the THC threshold would violate the defendant’s due process rights.
The U.S. Supreme Court has held that the State must prove every fact necessary to constitute the crime beyond a reasonable doubt. If the jury is never told that THC content distinguishes lawful from unlawful, they might convict without the State ever proving that critical fact – effectively lowering the burden of proof.
Though G.S. 90-113.1 shifts a burden of production to the defendant, it does not erase the State’s ultimate burden to prove illegality.
In practice, once the defendant has introduced evidence of the exception, the prosecution must disprove it beyond a reasonable doubt (or the jury must at least be convinced the exception doesn’t apply).
NC chose to specifically exclude hemp from the crime’s definition, indicating legislative intent that hemp possessors not be convicted.
It’s a subtle argument: essentially, “It offends due process to convict someone of ‘marijuana’ possession when the substance doesn’t meet the legal definition of marijuana. The jury must be clearly instructed on that definition to ensure a fair verdict.”
Precedent from Other Jurisdictions (Persuasive Authority)
If the judge is hesitant, it could help to mention how other courts are handling this issue in the post-Farm Bill era.
For example, in U.S. v. Rivera from the Third Circuit, the appellate court noted that the defendant could have avoided conviction by raising evidence of low THC, implying that if such evidence is raised, the jury should be told to consider it. While not necessarily binding in NC, the logic is that THC content is effectively an element that must be proven or at least considered.
Policy and Practicality
Finally, it appeals to common sense and fairness.
Juries should not be left in the dark about the law. The average juror might assume all cannabis is illegal “marijuana” unless told otherwise.
A simple clarifying instruction prevents juror confusion and ensures they apply the law correctly.
It also guards against the risk of a wrongful conviction for legal conduct.
You might argue: “We would be asking the jury to render a verdict without knowing the full legal definition of the crime. That’s like asking them to decide a larceny case without telling them the property had to belong to someone else. The 0.3% THC Threshold is specifically referenced in the statute – the jury deserves to know that.” This pragmatic pitch could resonate with judges.
The Art of Plea Negotiations & Plea Bargains
Marijuana or Hemp and 0.3% THC Threshold: Practical Considerations
Defense attorneys in North Carolina marijuana cases may want to proactively request a jury instruction defining marijuana to exclude hemp (≤0.3% THC) whenever the facts reasonably allow. A well-framed request serves two purposes: it gives your client a fighting chance at trial (by clarifying the State’s burden or the defense’s theory), and it preserves the issue for appeal if the trial court refuses. Here are some closing tips to improve the likelihood of success.
- Lay the groundwork through cross-examination or defense evidence that raises the hemp vs. marijuana question. Without evidence, a judge may deny the amended instruction as not grounded in the case’s facts. A lab tech’s admission that no potency test was done might be enough to warrant the instruction in certain factual scenarios, obviously taking into consideration the case law involving materials that per se are not hemp.
- Use precise, neutral language in the proposed instruction, carefully crafted utilizing the specific statutory definition(s). Show the court you are not asking for anything radical—just that the jury be instructed on the law as written. Including the “0.3% THC” definition and the term “hemp” in the charge would help focus the jury’s attention on the core issue.
- Be prepared to discuss the burden of proof. If the court is reluctant because of the statute shifting the burden on the defendant, remind the court that you have met the burden of production by introducing evidence. That is substantively and substantially different than the burden of proof, which remains the duty of the state. Mirror how juries are instructed on other affirmative defenses (they are told the outcome if they believe the defense).
- Cite pattern instructions and relevant caselaw by analogy. Note how the pattern instruction for lawful possession by an officer (an exemption) is given if there’s evidence, and it directly tells the jury to acquit if they find the exemption. Your requested instruction should be no different in principle. Specifically reference the footnote #1 for marijuana trafficking, which acknowledges the marijuana vs hemp issue. That same notation is oddly (and likely inadvertently) absent from the PJI on simple possession under 260.10 and NCPJI 260.15 for possession with intent to manufacture, deliver, or sell marijuana. Definitions of marijuana and hemp, acknowledging the delta-9 THC concentration(s), would be an accurate statement of the law, that if supported by the evidence, would be helpful to the jury’s determination of the facts. If that is indeed the case, the accused would be entitled to an amended .03 THC Threshold instruction.
- Emphasize the stakes: Without this instruction, a juror who thinks “this might have been hemp” could still erroneously vote to convict because they were never told that would actually negate guilt. We want jurors to apply the law correctly. The instruction protects the integrity of the verdict.
- Request the court issue a written order with detailed findings to memorialize the basis of the ruling. Ask the court to limit opinion testimony consistent with Ruffin—that the plant material only “looked like marijuana” and was officially described as “cannabis of unknown THC content,” rather than being definitively identified as marijuana.
In Closing: Clarifying THC in Jury Instructions for Hemp vs Marijuana
The interplay between hemp and marijuana under North Carolina’s 0.3% THC threshold can significantly affect criminal cases, especially when jurors must distinguish legal cannabis from illicit substances. A well-crafted jury instruction addressing the THC requirement ensures clarity, upholds due process, and helps prevent wrongful convictions. If you have questions about these laws, or if you’re facing charges where hemp might be an issue, the Powers Law Firm enjoys providing guidance based on years of practical courtroom experience. You can reach attorney Bill Powers at 704-342-4357 or email Bill@CarolinaAttorneys.com to discuss how these legal distinctions might influence your case.