Pills, Edibles, and Drug Mixtures in North Carolina: The Medium Matters

Published for NC Criminal Law on September 24, 2020.

I recently taught on the basics of drug law in North Carolina and was reminded just what a tricky area it can be. Chapter 90 of the N.C. General Statutes is a dense, complex, and ever-evolving set of laws proscribing controlled substances. There are many substances, offenses, enhancements, and sentencing rules to know, as well as evidence issues and offense-specific case law. One thorny area involves the law of drug mixtures. While practitioners handling felony drug cases may be aware of the rules here, they may come as a surprise to others. Some applications of the law in this area can produce unexpected results for the unwary defendant. Today’s post examines the rules of drug mixtures and their implications in North Carolina.

The Basics. I am using the term “drug mixture” to mean any substance containing some amount of a controlled substance that also contains other controlled or uncontrolled substances. If a single mixture contains two or more controlled substances, a person may be punished for each. State v. Hall, 203 N.C. App. 712 (2010) (single pill containing ketamine and MDMA supported convictions for possession of each substance). When a controlled substance is mixed with an uncontrolled substance—adding flour or some other cutting agent to cocaine, for instance—the total weight of the resulting mixture will determine whether the amount qualifies as trafficking, without regard to how much controlled substance is actually present in the mixture. See, e.g., State v. Broome, 136 N.C. App. 82 (1999) (substance containing mixture of 27 grams of cocaine and 246 grams of noncontrolled substances properly punished as trafficking cocaine between 200-400 grams); State v. Tyndall, 55 N.C. App. 57 (1981) (37.1 gram mixture containing 5.5 grams of cocaine properly punished as trafficking over 28 grams); State v. Miranda, 235 N.C. App. 601 (2014) (cocaine placed in rice to dry properly punished as trafficking when total weight of the mixture exceeded 28 grams).

This approach comes from the language of the trafficking statutes. For most trafficking offenses including cocaine, heroin (as well as other opiates or opioids), amphetamine, methamphetamine, MDMA, LSD, and other less common substances, the trafficking statutes apply to “any mixture” of the substance. See, e.g., G.S. 90-95(h)(4). I am focusing on trafficking here because non-trafficking drug offenses for these substances do not specifically depend on the weight of the substance. With marijuana, the weight directly affects the charging decision for trafficking and non-trafficking offenses alike, a point discussed further below.

Pharmaceutical Pills Are Mixtures. The mixture rule applies to pharmaceutical pills. For example, a Percocet painkiller may only contain 2.5 or 5.0 milligrams of the opioid oxycodone. The pill also contains 325 mg. of acetaminophen, as well as filler and other inactive material, making the total weight of the pill much higher than its actual opioid content. It does not take many pills like that to reach the 4-gram amount, triggering trafficking liability for opioids. See, e.g., State v. Burrow, 218 N.C. App. 373, vacated on other grounds, 366 N.C. 326 (2012) (trafficking conviction for 24 oxycodone pills); State v. Davis, 223 N.C. App. 296 (2012) (trafficking conviction for 29 Percocet pills); State v. McAllister, 222 N.C. App. 636 (2012) (unpublished) (trafficking conviction for 9 oxycodone pills). Prosecutors of course have the discretion not to seek trafficking convictions for possession of small amounts of pills, but our law allows for a person in possession of personal amounts of pills containing opioids to be charged and convicted of trafficking. I think of this as the “medium matters” rule.

This situation could in theory arise as to nearly any substance covered by the trafficking statutes where a pharmaceutical version of the drug exists or where the drug is otherwise sold in different mediums of varying weight. Jeff Welty noted the potential for the same issue here with Adderall, a medicine containing amphetamine. However, because the amounts necessary to trigger trafficking liability are higher for all categories of drugs other than opiates and opioids, trafficking liability will arise less frequently (and with less drastic results) when dealing with other types of controlled substances in pharmaceutical form. One exception to the “medium matters” rule is LSD. There, trafficking is strictly determined by dosage unit, not weight. Thus, no matter the weight of the medium (say, blotter paper versus sugar cubes), trafficking liability is not triggered below 100 doses. See G.S. 90-95(h)(4a). Contrast that with trafficking in MDMA (commonly known as ecstasy), where the amount needed to trigger trafficking liability is over 100 doses or 28 grams. See G.S. 90-95(h)(4b).

Does This Make Sense? Based on my last experience at the dentist, 10 or even 24 opioid pills like Percocet do not equate to very many doses of the substance. This is particularly true for a regular user who presumably requires higher doses than what would be prescribed by a doctor. 4 grams of heroin, by contrast, equates to between dozens and hundreds of doses, depending on the form and purity of the substance as well as the tolerance of the user. (One study found that a typical dose of intravenous heroin was 12 mg. on average. Even if we assume that street heroin is heavily diluted and the user has a high tolerance, a dose on the high end might be around 100 mg., or a tenth of a gram. 4 grams of heroin is therefore an amount capable of much wider distribution than 4 grams of most opioid pills.) According to at least one current justice of the state supreme court, this does not make sense and leads to the “disturbing” result of small-time dealers and users being subject to trafficking liability:

Taking total mass into account makes sense in the street drug context: drug dealers often ‘cut’ their product with other substances to increase the number of customers and to thus make a larger profit. . . However, that logic does not apply when examining prescription pills. Instead of the drug dealer mixing the substance, it is the pharmaceutical company, with different incentives, that creates the tablet or pill. State v. Ellison, 366 N.C. 439, 446 (2013) (Newby, J., concurring).

The drug mixture rule applied to opioid pills produces the odd result that someone in possession of, for example, 3 grams of heroin does not face trafficking liability, while a person in possession of a handful of pills (containing vastly smaller quantities of opioids in fewer doses) does.

What about Marijuana? The statute for trafficking in marijuana does not contain the “any mixture” language, but we get to the same place by way of the definition of marijuana in G.S. 90-87 (16): marijuana includes “the resin extracted from the plant . . . [and] every . . . mixture or preparation of such plant.” The issue of a “mixture” of marijuana does not seem to have arisen much in our case law, but it might soon, given the advent of new cannabis products. Marijuana might qualify as a Class 1 or Class 3 misdemeanor, a Class I felony, or trafficking. The classification generally depends on the weight.

Marijuana Edibles. These principles raise a question I left dangling in an earlier post on marijuana extracts—how should marijuana edibles (and other exotic forms of the substance) be charged? Based on the definition above, the total weight of the marijuana edibles will determine the appropriate charge. As with opioid pills, the strength of the product or number of doses the mixture contains does not matter under our current law, but the form of the product can make an enormous difference.

For example, a Google search tells me that a gummy bear on average weighs around 2 grams. A single, small brownie by contrast might weigh around 16 grams (and possibly more depending on its size and density). Both are common forms of edible marijuana. As I wrote in my earlier post, North Carolina law distinguishes between “resin extracted from marijuana” and “THC isolated from the resin of marijuana.” See G.S. 90-95(d)(4). For the first category, “extracted resin” products, the substance is a Class 3 misdemeanor if it weighs under 1/20 of an ounce (or 1.41 grams), a Class 1 misdemeanor if over 1/20 of an ounce but under 3/20 of an ounce (4.25 grams), and a Class I felony if over 3/20 of an ounce. For products containing “THC isolated from the resin of marijuana”, any amount is a felony. My sense is that marijuana edibles (like vape cartridges and wax products) are generally made from the extracted resin of the marijuana plant (containing numerous cannabinoids beyond just THC) and not with “isolated” THC.

Even then, felony liability will attach with one average size brownie or three average-sized gummy bears—presumably not amounts meant for distribution. The mixture rule thus operates to trigger felony liability for user amounts of marijuana edibles. As with opioid pills, this can create a differential impact on defendants depending on what form of the substance they use. While possession of marijuana in flower form remains a misdemeanor up to 1.5 ounces (much more than 1 or 2 doses of the drug), a single-dose brownie, or two or three single-dose gummy bears, seem to trigger liability for felony possession based on the weight as an extracted resin product. Trafficking is less of a concern here, as it takes over 10 pounds to trigger marijuana trafficking, but where the weight limit is met, the same disparity results. A few trays of brownies weighing over 10 lbs. would presumably trigger marijuana trafficking liability. While that amount (say, 75 brownies) is more consistent with an intent to distribute, the actual doses will generally be far less than what would be present in 10 lbs. of marijuana in flower form. So, the person that puts 5 grams of marijuana into a 1 lb. tray of brownies faces a felony, while a person in possession of 35 grams of marijuana flower stays in class 1 misdemeanor territory for less than 1.5 oz. A person who makes 11 lbs. of brownies using 1 lb. of marijuana incurs trafficking liability, while a person in possession of 9 lbs. of flower marijuana does not.

Of course, proving that an edible product is in fact illegal marijuana as opposed to a legal hemp product (or even just a regular baked good) will presumably entail the same challenges I outlined here and here with marijuana prosecutions generally. Those difficulties (as well as the differential outcomes that strict application of the law can produce) might be a reason to bargain the charge down, but that is again within the discretion of the prosecutor. In the Ellison case cited above, Justice Newby called on the legislature to amend the rules surrounding pharmaceutical opioid pills to rectify this situation. It seems we may soon be facing a similar problem with marijuana edibles. Unless and until there is a legislative change in these areas, keep in mind that when it comes to criminal liability for these drugs, the medium matters.

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