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What is the N.C. “Pot Exception?”

In the state of North Carolina, “it is a crime to knowingly sell or deliver a controlled substance to another person.” G.S. 90-95(a)(1).  Moreover, pursuant to G.S. 90-95(b)(2), the delivery of marijuana is a Class 1 Felony, as it falls into the Schedule VI “controlled substance” category. Id. This statute further illustrates that it will not considered “a delivery to transfer for no remuneration less than 5 grams of marijuana, or less than 2.5 grams of synthetic cannabinoid, or any mixture of the two.  Id.  This portion of the statute is typically referred to as the “pot exception” within various circles.

Now the question remains; what does remuneration mean? Simply put, remuneration is the exchange of money for a service.  This statute makes it so that if there is not an exchange of currency, and the amount of marijuana is less than 5 grams, the charge will not be a delivery of marijuana.  It would still be regarded as a possession charge, however.  This usually would apply when friends are sharing a marijuana cigarette, or “joint” and it is being exchanged from one person to the other.  As long as the “joint” is less than 5 grams, they will not be charged with delivery.

The recent North Carolina decision, State v. Land, addresses a couple of issues regarding this offense.  This case involved a defendant who gave an officer about 2 grams of marijuana.  He was charged with delivery of marijuana.  After being convicted, the man appealed, arguing that the indictment was defective due to the fact that it failed to allege an essential element of the offense.  He stated that he was charged with delivery of less than 5 grams of marijuana.  The problem with the indictment was that remuneration was not alleged.  The majority rejected this argument citing State v. Pevia, 56 N.C. App. 384, 387 (1982).  This case creates a single offense of delivery of a controlled substance, with no separate offense of delivery of marijuana.

The court concluded that under Pevia, the State can prove delivery of marijuana with evidence either (1) of transfer of 5 or more grams of marijuana, or (2) of a transfer of less than 5 grams for remuneration. Id.  It further stated that “since the methods of proof set out in G.S. 90-95(b)(2) are mere evidentiary matters, they need not be included in the indictment.” Id.  However, all three judges agreed that the trial court did err by failing to instruct the jury that a transfer of less than 5 grams of marijuana for no remuneration is not delivery.  Id. The jury concluded that, because of the small amount of marijuana involved, the State was required to prove that defendant transferred the marijuana for remuneration. Id.

This question will likely be heard by the Supreme Court of North Carolina on the matter of the indictment.  If you or someone close to you has been charged with a similar marijuana related charge, call the law offices of Reeves, Aiken & Hightower, LLP.  You can schedule a consultation with one of our professionals by calling our Charlotte, North Carolina office at 704-499-9000, or toll-free at 877-374-5999.