APPEALS COURT RULES THAT OFFICIALS CAN USE 'WET' WEIGHT OF MARIJUANA

Defendant had asked judge to dismiss trafficking charges based on evidence's dry weight

RALEIGH - Whether it's dried and baled or just snipped from its root, the weight of marijuana at the time it is seized is the weight that drug dealers have to answer for, the N.C.  Court of Appeals ruled yesterday.

The unanimous decision reversed a lower-court ruling to throw out drug-trafficking charges against Brian Frank Gonzales of New Hanover County.

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

Gonzales was charged with two counts of trafficking marijuana, as well as 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.

Samuel H.  MacRae, an attorney for Gonzales, asked Judge Ernest B.  Fullwood of Superior Court to dismiss the trafficking charges.  Most prosecutors use the dry weight of marijuana when determining which charges to file, MacRae said yesterday.

"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 appellate-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 needed to confer with his client before deciding whether to appeal to the N.C.  Supreme Court.  He said that the standard is unfair, but agreed that the appellate court had followed the law.  "They're stuck with what the definition is," MacRae said.  "The courts just can't make up the law."