Guide To Misdemeanor Marijuana Charges In Wake County, North Carolina

Is Marijuana Legal In North Carolina?

Marijuana is a Schedule VI drug. It is still illegal in North Carolina. (As of the posting of this blog on January 27, 2020)

Statute Addressing Misdemeanor Marijuana Charges:

  • G.S. 90-95(d)(4): A controlled substance classified in Schedule VI shall be guilty of a Class 3 misdemeanor, but any sentence of imprisonment imposed must be suspended and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation. If the quantity of the controlled substance exceeds one-half of an ounce (avoirdupois) of marijuana or one-twentieth of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, the violation shall be punishable as a Class 1 misdemeanor. If the quantity of the controlled substance exceeds one and one-half ounces (avoirdupois) of marijuana, or three-twentieths of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, or if the controlled substance consists of any quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from the resin of marijuana, the violation shall be punishable as a Class I felony.

Class 3 Misdemeanor:

  • A person can be charged with a Class 3 Misdemeanor if they possess up to a ½ ounce of marijuana. This includes tiny pieces inside of a pipe. 

Class 1 Misdemeanor:

  • A person can be charged with a Class 1 Misdemeanor if they possess a ½ ounce to 1 ½ ounces of marijuana. 

*Note: Wake County charges marijuana pens and cartridges as felonies. 

Possible Punishment:

  • Class 3 Misdemeanor: Up to twenty dails in jail and a maximum $200 fine. 
  • Class 1 Misdemeanor: Up to 120 days in jail and a maximum $1,000 fine.

Drug Paraphernalia:

  • Drug paraphernalia is anything used to introduce an illegal drug into the body. This includes a Ziploc bag, a pipe, rolling papers, a scale, or a prescription bottle to hold marijuana. 
  • Possession of marijuana paraphernalia is a Class 3 misdemeanor. 
  • Speak to your lawyer if you were charged with ONLY paraphernalia — you might have a strong argument. Paraphernalia must be paired with drugs in some form, otherwise it’s not paraphernalia. 

What Is Possession?

  • There are two types of possession: Actual and Constructive
    • Actual possession means you have the marijuana on your person – this could be in your pocket, in your purse, or your hand.
    • Constructive possession means the marijuana is within your control area. If your friend has marijuana in the car you are driving, you could be charged, even if you never touched the marijuana. If you have the ability to control or possess the drug, you can be charged. 

What If This Is My First Charge?

  • If you have never been charged with a crime before, with the exception of minor traffic violations, you may be eligible for the 90-96 program. Through this program you will complete a substance abuse assessment and complete fifteen hours of classes through Southlight. You have six months to complete this. Upon completion, your charge will be dismissed. 
  • Even if you have been charged with a crime before, you might still be eligible for 90-96. Speak to your attorney to determine your eligibility. 

Can A Marijuana Charge Be Expunged From My Criminal Record?

  • Generally, yes, but it depends on your criminal history. Expungement law is constantly changing, so speak to your attorney about an expungement upon dismissal. 

Should I Go To Trial?

  • Maybe. Currently in NC, there is no road test to differentiate between hemp and marijuana. Marijuana has .3% or more THC. Anything below is considered hemp. Hemp is currently legal in NC, although the General Assembly is trying to make it illegal so officers won’t be confused. 
  • If you were arrested for marijuana, and you did NOT admit that it was marijuana, you may have a strong argument. 
  • Officers nor dogs can tell the difference between marijuana and hemp by looking at it or smelling it. A roadside test only shows the presence of THC, but does not show how much THC the substance contains. 

Is Wake County Still Prosecuting Marijuana Charges?

  • Yes, and they show no indication of slowing down. 

When Will Marijuana Be Legal In North Carolina?

  • Likely once it’s legal federally. It’s unlikely NC’s conservative government will vote to make it legal anytime soon. 

Is CBD Legal In North Carolina?

  • Yes, because of the low to no THC level. 

I Have A Package From California That Says Hemp That I Bought At A Local Gas Station. Is It Legal?

Maybe not. Check the THC level. Some stores are selling marijuana but labeling it as hemp. If it’s .3% THC or more, it’s marijuana and is illegal.

The Officer Said He Smelled Marijuana. Is That Enough For A Stop?

Unfortunately, yes. Officers use this constantly, and there’s no good way to fight it, except to argue that the human nose, nor a dog’s nose, can differentiate between hemp and marijuana. Let your attorney argue this in court; never argue with an officer yourself.

Weed is not legal in North Carolina yet.

Have you been charged with possession of marijuana in Raleigh? Contact drug attorney Paige Feldmann at or (919) 747-3244 for a free consultation.

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