Delivery of a Controlled Substance and the "Pot Exception"

G.S. 90-95(a)(1) makes it a crime to knowingly sell or deliver a controlled substance to another person. As a general rule, the delivery of marijuana—a Schedule VI controlled substance—is a Class I felony. G.S. 90-95(b)(2). However, the statute provides that it is not a delivery to transfer for no remuneration less than 5 grams of marijuana or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such a substance. Id. This provision sometimes is called the “pot exception.” Here’s how it might apply: Two friends are sitting on a bench. One is smoking a joint. After taking a few hits, he passes it to his buddy, who does the same. No money changes hands. In this scenario, unless the joint is a monster-sized one, less than 5 grams of marijuana is likely to be involved. (Before you start pummeling me with questions and innuendo about how I know this, let me clarify: I googled it! Web sites with names like “Weedy” and “Grass City” and informed me that a joint typically contains less than 1 gram of marijuana.) But let’s get back to our example. In this scenario, there is no delivery because less than 5 grams of marijuana was transferred and no remuneration was involved. Of course, both friends are guilty of simple possession. And yes, for you zealous officers, possession of paraphernalia (the rolling paper) applies as well. A recent case, State v. Land, addressed a couple of issues regarding this offense. In Land, the defendant [...]