In Part I of my Spring 2024 cannabis update, I discussed the search and seizure issues arising in North Carolina courts around cannabis. Part II explores drug identification evidence issues surrounding marijuana prosecutions and examines potential challenges defenders might raise. This post will also cover recent developments on the state, federal, and tribal levels impacting cannabis. Lay Opinions Identifying Marijuana. Under precedent pre-dating the legalization of hemp, a trained officer’s lay opinion that a substance is marijuana based on its sight or smell is sufficient to prove the identity of the substance. State v. Fletcher, 92 N.C. App. 50 (1988). Since the advent of legal hemp, there are many legal, hemp or hemp-based products that cannot be distinguished from marijuana by sight or smell. See State v. Highsmith, 285 N.C. App. 198 (Aug. 16, 2022) at n. 1 (noting the similarity in appearance and odor of hemp and marijuana). To reliably distinguish between the two substances, a lab test quantifying the levels of delta-9 THC must be performed—a test neither the State Crime Lab nor any law enforcement lab in the state currently performs. As a result, defenders have been arguing that the Fletcher visual identification rule no longer makes sense. We have not yet seen a case analyzing the admissibility of an opinion identifying a substance as marijuana without this kind of chemical analysis in the age of hemp, and the issue remains a live one. At least some out-of-state jurisdictions have begun requiring the State to prove delta-9 THC [...]
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