WEIGHT OF 'WET' WEED FOCUS OF COURT CASE

Whether the marijuana is dried and baled or just snipped from its root, its
weight at the time it is seized is what drug dealers have to answer for,
the state Court of Appeals ruled Tuesday. The unanimous decision reversed a
lower court ruling to throw out drug trafficking charges against Brian
Frank Gonzales of New Hanover County.

On April 3, 2002, investigators in Castle Hayne found 731 potted marijuana
plants growing in two 60-foot storage containers with the aid of lights,
fans and an irrigation system. They cut the plants at their base, leaving
behind the roots, and measured their total weight at 25.5 pounds.

Gonzales was charged with two counts of trafficking marijuana and with
manufacturing and possessing marijuana. His case has not gone to trial.

The State Bureau of Investigation later determined the weight of the dried
marijuana to be 6.9 pounds, well below the 10-pound legal threshold for
trafficking charges in North Carolina.

Attorney Samuel H. MacRae asked Superior Court Judge Ernest B. Fullwood to
dismiss the trafficking charges. Most prosecutors use the dry weight of
marijuana to determine which charges to file, MacRae said Tuesday.

"It's like trying to sell wet tobacco," MacRae said. "You just don't do it.
It's not the way it's marketed."

Fullwood agreed, but the appeals court decision written by Judge Douglas
McCullough reinstated the charges based on the state's definition of marijuana.

The state definition excludes only mature stalks and sterilized seeds as
elements of marijuana, meaning that naturally occurring water in the plants
can count toward the weight. Federal law requires that the drug be weighed
dry, but there's no evidence that North Carolina intends its authorities to
follow that guideline, McCullough wrote.

"The North Carolina legislature has had ample time to make the requisite
changes to the statutory definition of marijuana to ... exclude the plant's
natural moisture content from the definition of 'marijuana,' but has thus
far chosen not to do so," the ruling said.

MacRae said he needs to confer with his client before deciding whether to
appeal. He said that the standard is unfair but that the appellate court
had followed the law.