By Dillon Sharpe, Emancipate NC Attorney
Marijuana remains illegal in North Carolina—but hemp is 100% legal. Across the state, countless businesses legally sell hemp products, including flower, vape cartridges, and edibles. Yet despite hemp’s clear legal status, most District Attorney’s Offices continue to prosecute people for marijuana-related offenses, even when there is serious doubt about whether the substance involved is illegal at all.
This approach comes at a significant cost. Taxpayers spend unnecessary money citing, arresting, incarcerating, and prosecuting people for marijuana-related charges—often without definitive proof that a crime occurred. And as with so many aspects of the criminal legal system, these harms fall disproportionately on Black and Brown communities, who are arrested and prosecuted at higher rates despite widespread acknowledgment of the legal and evidentiary problems surrounding these cases.
A small number of counties—including Mecklenburg, Durham, and Orange—have chosen not to prosecute marijuana offenses because of the difficulty in distinguishing legal hemp from illegal marijuana. Most other counties fall into one of two categories: either they offer compliance deals or conditional discharges in exchange for dismissal, or they proceed with prosecution regardless of whether the alleged substance has been chemically tested.
That testing matters. Hemp and marijuana are both cannabis. The only legal distinction between them is the amount of Delta-9 THC. Under North Carolina law, cannabis is illegal only if it contains more than 0.3% Delta-9 THC on a dry weight basis. Below that threshold, the substance is legally defined as hemp. To the human eye—and even to drug-sniffing dogs—hemp and marijuana are indistinguishable.
Chemical testing is the only reliable way to determine legality, yet the state often avoids it because testing is expensive, typically starting around $500. When testing does occur, the cost is frequently pushed onto the person accused. Complicating matters further, standard drug tests only detect the presence of THC, not its concentration. Specialized testing is required to measure THC levels, making many prosecutions legally shaky from the start.
This creates real challenges for people accused of possession—and for their attorneys. Without proof that a substance is illegal, it can be difficult to decide whether to hire a lawyer, accept a deal, fight the case, or attempt to navigate the process alone. Even so-called “admissions” to possessing “weed” may not be enough to prove illegality, as people can unknowingly purchase legal hemp believing it to be marijuana.
If you possess legal hemp, protect yourself by keeping receipts and original packaging with the product at all times. And if you encounter law enforcement, remember that what you say can be used against you. It may feel natural to answer questions, but doing so can harm you in the long run.
If police stop you and investigate for marijuana possession:
- Ask whether you are being detained
- Ask the basis for the detention
- Do not consent to searches of your person or vehicle
- Clearly state that you wish to remain silent or speak with a lawyer before answering questions beyond basic identifying information
Only you can protect your rights—and you must exercise them early and often during any police encounter.
We strongly recommend speaking with a licensed North Carolina attorney to understand your options, whether that means taking a case to trial, negotiating a compliance-based dismissal, or considering a plea. At Emancipate NC, we have the experience and expertise to guide people through these decisions and provide representation when possible. You and your loved ones do not have to face the court system alone—or without the information needed to make the best choice.