Hiltzheimer North Carolina Drug Possession Attorney

In the state of North Carolina, NCGS § 90-95 is the portion of the law governing the manufacture, possession, and sale of controlled substances. The law itself is very detailed, but these are some of the highlights when it comes to drug possession:

• Possession of a controlled substance is illegal (unless you are specifically authorized to have it)
• It is illegal to possess a controlled substance with the intent to manufacture, sell, or deliver it
• It is illegal to possess a counterfeit controlled substance with the intent to manufacture, sell, or deliver it
• There are minimum amounts of each type of drug you must have to be charged with drug trafficking
• There are penalties for possession, possession with intent, and drug trafficking

Under North Carolina drug possession laws, you can be charged with possession even if you have a small amount of a controlled substance. However, the penalties for North Carolina drug possession charges under NCGS § 90-95 vary widely.

For example, if you are arrested with less than half an ounce of marijuana, you can be convicted of a class 3 misdemeanor (the least severe misdemeanor in North Carolina). If you are given a jail sentence, the judge is legally required to suspend it. This is common in many minor North Carolina drug and alcohol convictions.

However, if you are in possession of 400 grams or more of methamphetamine, you can be convicted of a class C felony. If convicted, you must serve at least 225 months in a state prison and pay a fine of at least $250,000.

Because there are so many charges you can potentially face under NCGS § 90-95, it’s highly recommended that you seek the guidance of a knowledgeable drug possession attorney. Some local ordinances on drugs may differ from state drug and alcohol laws. Our North Carolina drug possession lawyers are familiar with federal, state, and local drug laws and can help you understand your options.

You also might wonder about the statute of limitations on drug possession. In North Carolina, for most misdemeanor charges, it is two years. However, for felony charges, there is no statute of limitations.

If you’re charged with a first-time drug offense under North Carolina state law, you may be eligible for a “conditional discharge” under N.C.G.S. 90-96, which allows a defendant to enter into a plea agreement without incurring a criminal conviction, if he or she successfully completes probation. In short, any individual with no prior felony convictions and no prior drug or paraphernalia convictions of any kind may plead guilty (or be convicted at trial) of any misdemeanor or felony drug possession charge under N.C.G.S. 90-95(a)(3), and be placed on probation without judgment being entered by the judge. If the defendant successfully completes probation, the court will dismiss the charge and the case will not result in a criminal conviction. If the defendant violates probation or otherwise fails to complete it successfully, on the other hand, a judgment may be entered and a criminal conviction will result.

Conditional Discharge: N.C.G.S. § 90-96

North Carolina law has what is known as a “conditional discharge” option for certain first-time drug offenders, under N.C.G.S. § 90-96. If you are charged with a misdemeanor drug offense or a felony charge for mere possession, you may be eligible for conditional discharge under 90-96. This can apply to possession of marijuana, possession of drug paraphernalia, or felony possession of cocaine, heroin, methamphetamine, ecstasy (aka Molly, or MDMA), etc. In short, that means there may be an option for you to get your case dismissed in its entirety if you are willing to jump through some hoops, including drug classes, probation, and other potential conditions over a period of time.

If you have no prior felony convictions and no prior convictions for drug possession, or possession of drug paraphernalia (PDP), then you can plead guilty — or be convicted following a trial — of a misdemeanor drug charge, or felony drug possession charge under N.C.G.S. 90-95(a)(3) — and be placed on probation without judgment being entered by the judge. If you complete probation and any associated conditions successfully under the 90-96 program, your case will be dismissed. (Note: The judge can technically only deny your entry into 90-96, when otherwise eligible, by determining in writing, and with the agreement of the District Attorney, that you are “inappropriate for a conditional discharge for factors related to the offense” — but who knows what that means.)

If you fail to complete probation successfully, on the other hand, a criminal conviction may automatically result, because by entering into the program you must admit guilt and give up your right to a trial. As long as you do everything you’re required to do, that won’t be a problem.

Informal Deferred Prosecution

But, you can only enter 90-96 once, and there may be other options available. In some cases, an attorney is able to negotiate an informal deferred prosecution agreement outside of the formal 90-96 statutory framework, which would allow you to preserve your ability to take advantage of 90-96 at some time in the future.

North Carolina law handles possession, use, and distribution penalties differently depending on the type of drug involved, the quantity, and, sometimes, whether the drugs are intended for your own use or you intend to sell them.

There are three general categories of drug laws in NC:

• Simple possession
• Possession with intent to manufacture, sell, or deliver
• Drug trafficking

Here’s a look at what each charge means.

Simple Possession

Simple possession of a controlled substance is a misdemeanor, and it is the least severe offense. This crime occurs when you have a small amount of a controlled substance you intend to use yourself. You also must have no intention of selling or giving it to anyone else.

For example, if you purchase a few dosage units of LSD for yourself and are caught with them, you could be charged with simple possession of a controlled substance under state and local regulations.

It’s important to note that you are not guilty of the offense of simple possession of a controlled substance if you have controlled drugs that are prescribed to you.

For example, if you have a bottle of Xanax you purchased from a pharmacy because it was legitimately prescribed to you, you would not be charged. However, if you buy some Xanax from a friend, a law enforcement officer could reasonably charge you with simple possession.

Possession With Intent to Manufacture, Sell, or Deliver

If you have controlled substances (or the precursor chemicals you need to make them) and you intend to make, sell, or give away drugs, you can be charged with possession with intent to manufacture, sell, or deliver.

A prosecutor must be able to prove your intent in order to secure a conviction. However, if you have a significantly large quantity of a controlled substance, you can be charged with drug trafficking instead.

Drug Trafficking

Contrary to popular belief, you don’t have to engage in any kind of drug transaction or transportation to be charged with trafficking. Most people who keep drugs for personal use have relatively small quantities on hand at any given time.

Because someone with significant quantities of illegal drugs or other controlled substances is likely involved in the sale or transport of those drugs, they can be charged with trafficking. These are the minimum amounts of common controlled substances for a North Carolina drug trafficking charge:

• Heroin or Other Opioids: 4 grams
• Methamphetamine: 28 grams
• Cocaine: 28 grams
• Marijuana: 10 pounds
• LSD: 100 dosage units
• MDMA: 28 grams

Being caught with these amounts of controlled substances (or the minimum amount of less common controlled substances outlined in state law) can result in state drug trafficking charges — there is no legal requirement to prove intent.

It’s important to note that once you transport or sell these controlled substances across state lines, you’re no longer only violating state laws — you are also violating federal drug laws. In many cases, federal drug trafficking charges come with more serious consequences than state charges.

Schedule I Has a “high potential for abuse”; no medical use; lack of accepted safety.	HeroinEcstasyLSDGHBMethaqualonePeyoteOpiates(and others)	First Offense: Class I Felony 4-5 Months
Schedule II Has a high potential for abuse; accepted medical use with severe restrictions; abuse may lead to physical or psychological dependence.	CocaineRaw OpiumOpium Extracts, Fluid and PowderCodeineHydrocodoneMorphineMethadoneMethamphetamineRitalin (and others)	First Offense: Class 1 Misdemeanor 45 Days in Jail	Second Offense Class I Felony 4-5 Months
Schedule III Has potential for abuse, but less than Schedule I or II substances; has accepted medical use; abuse may lead to limited dependence.	KetamineAnabolic SteroidsSome Barbituates(and others)	First Offense: Class 1 Misdemeanor 45 Days in Jail	Second Offense Class I Felony 4-5 Months
Schedule IV Has a low potential for abuse & accepted medical use; abuse may lead to limited dependence.	ValiumXanaxRohypnolDarvonClonazepamBarbital(and others)	First Offense: Class 1 Misdemeanor 45 Days in Jail	Second Offense Class I Felony 4-5 Months
Schedule V Has a low potential for abuse & accepted medical use; abuse may lead to limited dependence.	OTC cough medicines w/ codeine(and others)	First Offense: Class 2 Misdemeanor 30 Days in Jail	Second Offense Class 1 Misd. 45 Days in Jail
Schedule VI Has a low potential for abuse. Has no accepted medical use. Abuse may lead to limited dependence.	MarijuanaHashishHashish Oil	First Offense: Class 3 Misdmeanor 10 Days in Jail or Suspended Sentence	Second Offense Class 2 Misd. 30 Days in Jail

Marijuana	10 – 49 lbs.50 – 1,999 lbs.2,000 – 9,999 lbs.10,000 lbs. or more	Class H Felony 25 – 30 MonthsClass G Felony 35 – 42 MonthsClass F Felony 70 – 84 MonthsClass D Felony 175 – 219 Months	$5,000 Fine$25,000 Fine$50,000 Fine$200,000 Fine
Heroin	4 – 13 grams14 – 27 grams28 grams or more	Class F Felony 70 – 84 MonthsClass E Felony 90 – 117 MonthsClass C Felony 225 – 279 Months	$50,000 Fine$100,000 Fine$250,000 Fine
Cocaine	28 – 199 grams200 – 399 grams400 grams or more	Class G Felony 35 – 42 MonthsClass F Felony 70 – 87 MonthsClass D Felony 175 – 219 Months	$50,000 Fine$100,000 Fine$250,000 Fine
Methamphetamines	28 – 199 grams200 – 399 grams400 grams or more	Class F Felony 70 – 84 MonthsClass E Felony 90 – 117 MonthsClass C Felony 225 – 279 Months	$50,000 Fine$100,000 Fine$250,000 Fine

Most people have a general idea of what you mean when you say “possession of a controlled substance.” But did you know there are actually two types of possession under the law?

Actual Possession

Actual possession of a controlled substance is a clear-cut case of possession. That typically means you have the drugs in your pocket, in your hand, or otherwise on your person.

Constructive Possession

Constructive possession happens when the drugs are not actually on your person, but you still have control over the drugs and know of their presence. For example, if drugs are found in the trunk of your car or your home, you could be found to constructively possess the drugs.

Because constructive possession is harder to prove, a competent drug possession lawyer may be able to create enough reasonable doubt for an acquittal.

The court has some discretion when assessing penalties for drug possession. For instance, a judge will take into account the circumstances of the crime at hand as well as past misdemeanor and felony convictions.

Here’s a look at the maximum punishments for possession and possession with intent to manufacture, sell, or deliver in North Carolina, categorized by schedule.

Schedule I Drugs

For possession, you can spend up to five years in prison, and you may face a fine. For possession with intent, you can spend up to 10 years in prison and face a possible fine. Both charges are felonies.

Schedule II Drugs

A possession conviction is usually a misdemeanor and comes with two years in prison and a $2,000 fine. Possession of larger amounts of some substances can lead to a felony conviction punishable by up to five years in prison and a fine. For possession with intent, you can spend up to 10 years in prison and pay a fine.

Schedule III Drugs

Possession of up to 100 dosage units is a misdemeanor punishable by up to two years in prison and a possible fine. Possession of more than 100 dosage units is a felony punishable by up to five years in prison and a possible fine. For possession with intent, you can face a felony conviction and up to five years in prison (with a possible fine).

Schedule IV Drugs

Penalties for schedule IV drugs are the same as those for schedule III.

Schedule V Drugs

Possession is a misdemeanor punishable by up to six months in jail and a fine. Possession with intent is a felony punishable by up to five years in prison and a fine.

Schedule VI Drugs

Possession penalty varies based on quantity, but it can be up to a felony charge punishable by 12 months in prison and a fine. The maximum penalty for possession with intent varies based on whether you sell isolated THC, marijuana, hashish, or another product.

Drug trafficking charges are generally more serious than possession with intent to manufacture, sell, or deliver. Sentencing includes many variables, with sentences increasing with the quantity of drugs you have.

However, you can face the state’s most severe trafficking charge if you have at least 400 grams of methamphetamine. If convicted, you may spend up to 282 months (23.5 years) in a state prison and pay a fine of at least $250,000.