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North Carolina Criminal Law §90-113.22A - Possession of Marijuana Drug Paraphernalia

Definition and Elements of the Crime

90-113.22A - Possession of Marijuana Drug Paraphernalia Possession of Drug Paraphernalia is a broadly written NC Criminal Law / Drug Crime and is characterized as a specific intent offense. The Defendant must knowingly intend to possess or use marijuana paraphernalia for controlled substances.

A Drug Paraphernalia charge involving marijuana (N.C.G.S. §90-113.22A) is a Class 3 Misdemeanor in North Carolina, and while similar to N.C.G.S. §90-113.22, is a separate and distinct criminal charge. A violation of N.C.G.S. §90-113.22 is a Class 1 Misdemeanor in NC.

The intent applies beyond the "use" of drug paraphernalia and further includes items that may be used to cultivate, plant, grow, propagate, manufacture, covert, compound, process, produce, prepare, analyze, test, package or repackage, contain or store controlled substances.

Paraphernalia includes items used to conceal the marijuana that it would be otherwise illegal to possess, ingest, inject, inhale, or otherwise introduce into the human body. The NC Criminal Laws draw a distinction between Delta 8 - Tetrahydrocannabinol (THC) and Delta-9, with certain technical provisions.

The introduction and acceptance of some hemp-based / CBC products (Cannabichromene), which in certain circumstances, may be lawful to possess in North Carolina. Hemp products, including those with a 0.3% or less concentration of Delta 9, are subject recent changes in the law and are generally thought to be legal to possess.

**The current status of the NC Marijuana Paraphernalia possession law is notoriously complicated and somewhat confusing. One should not assume products purchased under the guise they are "legal" or "CBD - Hemp - Delta 9" contain .3 percent or less concentration of Delta 9. It is highly recommended anyone charged with Possession of Marijuana and/or Possession of Drug Paraphernalia immediately seek legal representation (establish an attorney-client relationship) by a criminal defense lawyer.

The State (the prosecutor) carries the Burden of Proof. In criminal cases, including the drug paraphernalia laws, the legal standard is Proof Beyond a Reasonable Doubt.

If a defendant has been accused and charged of knowingly and unlawfully possessing with the intent to use or using marijuana paraphernalia, the prima facie elements of the offense include things such as:

  1. The defendant either used or possessed drug paraphernalia. Marijuana paraphernalia means all products, materials, and equipment of any kind that are designed or intended to facilitate, or used to facilitate violations of the North Carolina Controlled Substances Act.
  2. The defendant did intentionally (knowingly) possesses the drug paraphernalia/marijuana paraphernalia. "Knowingly possess" means the Defendant was aware of the presence of the drug paraphernalia, and either by themselves or with others, has the intent to control and the power to control the use or disposition of the drug paraphernalia.
  3. At the time, the defendant possessed marijuana paraphernalia with the intent to use the drug paraphernalia to use it. Use includes cultivating, planting, growing, propagating, manufacturing, et al a controlled substance that is illegal to possess.

North Carolina Criminal Pattern Jury Instruction - PJI 260.95

Helpful Information About Criminal Charges in North Carolina Examples of Possession of Marijuana Drug Paraphernalia a. THC Tetrahydrocannabinol - Delta 8 Possession

Charlotte Mecklenburg Police Department Officer Johnny Lawman was filling up his patrol car at the QT Gas Station on Wilkinson Boulevard in Charlotte NC. As Officer Lawman pumped his gas, Defendant Garcia Weedman pulled up in his pristine 1962 Volkswagen Type 2 Bus "Combi" with California license plates and parked in the spot immediately adjacent to CMPD Officer Lawman.

Defendant Weedman immediately exited his vehicle and walked into the QT, not noticing the police officer. The Officer immediately detected what he describes as an overwhelming odor of marijuana. Officer Lawman walks over to the Volkswagen Bus and sees in plain view a bag of a green leafy substance (later determined to be marijuana), a brand new, unused glass pipe, and a marijuana grinder in the front passenger seat.

As Defendant Weeman exited the QT, carrying a large bag of Cheetos, 40 oz Cherry Icee, and 10-count Hostess HoHos, Officer Lawman approached Mr. Weedman and stated, "How you doing today sir? I couldn't help but notice your beautiful Volkswagen Bus. It looks like you have some marijuana in the front seat and a pipe."

In response, Mr. Weedman told Officer Lawman, "Yes sir, officer. Don't worry. It's just for personal use. I've got less than a 1/4 ounce on me. I haven't smoked anything yet, so I'm not DUI or anything. I just needed some gas to head up to Asheville for the Pritchard Park Drum Circle and thought I'd stock up on some snacks."

Mr. Weedman consented to a search of his vehicle, after which Officer Lawman handcuffed and arrested Mr. Weedman. Officer Lawman cited Mr. Weedman with Simple Possess Sch VI CS M - Misdemeanor Possession of Marijuana and Possession of Drug Paraphernalia. Upon executing a Written Promise to Appear (an unsecured bond), Mr. Weedman was released from the Mecklenburg County Jail - Sheriff Arrest Processing Center and advised to appear in Courtroom 1130. The suspected "green leafy substance" was later tested by an approved laboratory, at which time the tests results indicated "positive for active components Delta-8 Tetrahydrocannabinol (THC).

At trial, Defendant pleads not guilty, alleging as defenses: 1. The marijuana was lawfully purchased in the State of Florida and did not exceed 1/4 oz. 2. The plastic baggy containing the marijuana was not "drug paraphernalia." 3. The glass pipe had never been used and therefore contained no residue of marijuana. 4. The marijuana grinder is not used to smoke marijuana and, therefore, also is not drug paraphernalia.

Upon taking testimony and the introduction of the seized evidence and related Lab Report indicating active components of THC, the Court (the District Court Judge) finds the Defendant GUILTY of both simple possession of marijuana and possession of drug paraphernalia, setting forth:

  • The possession of marijuana in North Carolina is illegal, despite the fact it may have been purchased in a jurisdiction where possession of less than 1/4 oz of marijuana is lawful for personal use.
  • The marijuana grinder is drug paraphernalia and plastic baggy used to store the marijuana, as they all fall within the expansive statutory definition of marijuana of items that are used to process, produce, prepare and/or use a controlled substance.
b. Delta 9 - CBD - Possession of Drug Paraphernalia

Same fact pattern, except that the "green leafy substance" seized during the arrest is later tested "negative for active components of Delta-8 Tetrahydrocannabinol. Positive for Delta-9 Tetrahydrocannabinol, 0.39% concentration with a measured weight of 8 grams. Defendant Weedman purchased what he believed to be Delta-9 CBD from a "100% Legal Delta-9 CBD-Hemp" store in Charlotte, North Carolina.

The District Court Judge finds Defendant Weedman GUILTY of possession of marijuana and NOT GUILTY of possession of drug paraphernalia - marijuana, finding the concentration of the Delta-9 exceeded the 0.3% or less concentration of a hemp product that ordinarily is authorized under the law. The Court further found Defendant did not intentionally or knowingly possess drug paraphernalia, as Mr. Weedman purchased the Delta-9 at a store advertising "100% Legal Hemp."

c. 0.3% concentration - Delta 9 - Tetrahydrocannabinol

Same fact pattern, except that the "green leafy substance" thought to be marijuana is later found to be hemp with a concentration of .3% or less. Officer Lawman further testified, based on his training and experience, the glass pipe and grinder could be used for marijuana as well as hemp products.

The Court finds Defendant NOT GUILTY of all the charges, finding Defendant Weedman lawfully possessed 0.3% concentration - Delta 9 - Tetrahydrocannabinol, and as such, the paraphernalia used to store, use, and process the legal substance, that being hemp, is not illegal.

Defenses to Possession of Drug Paraphernalia - Marijuana

Possession of Drug Paraphernalia requires scienter, that being the Specific Intent to knowingly and intentionally possess drug paraphernalia. Scienter refers to a culpable state of mind. Criminal lawyers may refer to it as the Mens Rea or "evil mind."

Defenses may be available, including but not limited to:

  1. Lack of Specific Intent
  2. Lack of Possession or Control
  3. Lawful Possession of Hemp (.3% concentration or less) - Not Controlled Substance
  4. Lawful Possession items used to use a lawful substance
Possible Punishments for Possession of Drug Paraphernalia - Marijuana

Possession of Drug Paraphernalia (PDP) - Marijuana is a Class 3 Misdemeanor in North Carolina. The maximum period of incarceration of 20 days in the custody NC Department of Adult Corrections, in certain circumstances. For certain Class 3 Misdemeanors. - Unless pursuant to another specific criminal offense, the punishment/judgment for a Defendant convicted of a Class 3 misdemeanor, with no more than three (3) prior convictions, may only consist of a fine.

Criminal Defense for Possession of Drug Paraphernalia

90-113.22A - Possession of Marijuana Drug Paraphernalia If you are being investigated for drug charges, we believe it best to consult with an experienced Criminal Defense Attorney in Charlotte. Lawyer Up!

Take the 5th. Exercise the right to remain silent. Politely decline to cooperate with any investigation or provide information to law enforcement. Ask to speak with a lawyer.

Our criminal defense law firm helps people charged with criminal charges in Charlotte, in Mecklenburg County, Gaston County, Union County, Iredell County, and Lincoln County NC.

For more information about Possession of Drug Paraphernalia charges, plea call our law firm now to schedule a free case consultation.

You may reach Bill Powers by email at Bill@CarolinaAttorneys.com
You may also call toll-free: 704-342-4357
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