Drug Possession Defense Lawyers
Drug possession is a crime in North Carolina and federal court that refers to the willful and unlawful possession of controlled substances, such as marijuana, cocaine, and heroin. It is also illegal to possess drugs that are legal under certain circumstances (such as through a medical prescription) when you have not obtained them through legal means. Drug possession laws generally fall under two categories:
- Possession for personal use (“simple possession”)
- Possession with intent to distribute or manufacture.
The latter carries harsher penalties upon conviction in both federal and state court, but also has higher standards for conviction as there needs to be additional proof of intent to commit further crimes. To be charged with simple drug possession in North Carolina or federal court, prosecutors must prove beyond a reasonable doubt that the defendant:
- Knowingly possessed or had control over the drug;
- Knew that the drug in question was a controlled substance; and
- The controlled substance was not obtained through a valid prescription nor from over-the-counter retail in accordance with purchasing restrictions.
Understanding North Carolina Drug Schedules
Drug Schedules dictate the penalties for various drug crimes based on the type of substance involved. In North Carolina, the schedules are determined by the North Carolina Commission for Mental Health, Developmental Disabilities and Substance Abuse Services (NCDHHS). Federally, drug schedules are set by the Drug Enforcement Administration (DEA), typically with review of medical and scientific evidence from the Food and Drug Administration (FDA). Federal drug schedules range from 1 to 5, where schedule 1 substances are considered to have the most potential for abuse and least or no valid medical use. North Carolina drug schedules 1 through 5 are mostly consistent with federal drug schedules, though North Carolina has an additional schedule 6. Schedule 6 in North Carolina is specifically for regulating Marijuana and its main psychoactive compound, THC, which the federal drug schedules currently regulate as schedule 1 substances.
Drug schedules for both North Carolina and the federal government are as follows, with discrepancies noted with an *asterisk:
Controlled substances are designated as schedule 1 if they have been determined to:
- Have high potential for abuse; and
- No currently accepted medical use in the United States, or a lack of accepted safety for use in treatment under medical supervision.
They include: Heroin, MDMA (Ecstasy), Psilocybin (from “Magic Mushrooms”), Mescaline (from Peyote), Dimethyltryptamine (DMT), Methaqualone (“Quaaludes”), Lysergic Acid Diethylamide (LSD), *Marijuana
*Marijuana is a schedule 1 drug federally, but a schedule 6 drug in North Carolina.
Controlled substances are designated as schedule 2 if they have been determined to:
- Have a high potential for abuse; and
- Currently accepted medical use in the united states with severe restrictions; and
- Abuse may lead to severe psychic or physical dependence.
They include: codeine, morphine, oxycodone, fentanyl, methadone, amphetamine, methamphetamine (“Crystal Meth”), cocaine, phencyclidine (PCP)
Controlled substances are designated as schedule 3 if they have been determined to:
- lower potential for abuse relative to substances in schedule II and I
- Currently accepted medical use in the united states
- may lead to moderate or low physical dependence or high psychological dependence
They include: ketamine, anabolic steroids, testosterones, products with more than 90mg of codeine per dosage unit (e.g. Tylenol with codeine)
Controlled substances are designated as schedule 4 if they have been determined to:
- lower potential for abuse relative to substance in schedule III
- Currently accepted medical use in the united states
- may lead to limited physical or psychological dependence relative to schedule III substances
They include: Alprazolam (Xanax), Diazepam (Valium), Zolpidem (Ambien), Flunitrazepam (Rohypnol), some narcotic pain relievers which contain opioid overdose reversal medications (e.g. Talwin which contains Naloxone)
Controlled substances are designated as schedule 5 if they have been determined to:
- Have low potential for abuse relative to schedule 4 drugs
- Currently accepted medical use in the united states
- Limited physical or psychological dependence
They include: preparations that include some amount of narcotics, such as over-the-counter cough syrups with small doses of codeine.
*Federal laws do not have a schedule 6, but North Carolina has it specifically for marijuana and its main psychoactive compound THC.
Schedule 6 drugs in North Carolina have:
- low potential for abuse nor risk to public health
- some potential to produce psychic or physiological dependence
no currently accepted medical use within the United States, or need for further and continuing study to develop the scientific evidence of its pharmacological effects.
There are exceptions where THC is legal in accordance with N.C.G.S § 90-94.1, where extract with THC less than 0.9% and no other psychoactive substances, for the use in treatment of epilepsy. This makes it legal for a patient with such prescription or their caregiver to be in possession of the extract, so long as they follow guidelines for disposal.
Drug Possession Penalties in North Carolina
Drug possession for personal use crimes in North Carolina are addressed under N.C.G.S § 5-90-95(a)(3) as controlled substance possession crimes without intent to manufacture, sell or deliver. Penalties are first and foremost determined by schedule of the drug possessed, each with some exceptions based on quantity and specific drugs within the schedule.
Schedule I: Conviction will result in a class I felony. The exception is a class 1 misdemeanor for:
- possession of 1 gram or less of MDPV (a type of bath salt).
Schedules II, III and IV: Conviction will result in a class 1 misdemeanor. The exception is a class I felony for any of the following:
- More than 4 dosage units of hydromorphone.
- More than 100 dosage units of methamphetamine, amphetamines, PCP or cocaine and their derivatives.
Schedule V: Conviction will result in a class 2 misdemeanor.
Schedule VI: Conviction will result in a class 3 misdemeanor with no amount of imprisonment imposed. Quantity exceptions are:
- Greater than 0.5 ounces or marijuana or greater than 0.05 ounces of marijuana’s extracted resin (“hashish”) is a class 1 misdemeanor.
- Greater than 1.5 ounces of marijuana or greater than 0.15 ounces of hashish is a class I felony.
Quantities that Exceed Possession Charges
If you are in possession of a large quantity of drugs that exceeds what North Carolina law considers simple possession, your charges can be increased to felony trafficking charges. The quantity limits for various drugs are:
- More than 10 pounds of marijuana
- More than 50 dosage units (3 grams each) of synthetic cannabinoids
- 28 grams or more of cocaine, methamphetamines, amphetamines, cathinone or their derivatives
- 1000 or more tablets of methaqualone
- 100 or more tablets of LSD or MDMA (or 28 grams or more of MDMA)
- 4 grams or more of opium, opioids or opiates (such as heroin), with a few exceptions.
These trafficking charges also apply to conspiracy to possess any of the above drugs exceeding the listed quantities.
If previously convicted of a drug crime that is punished in North Carolina, whether the conviction took place in North Carolina, federal court or any other state, the above penalties can increase:
- A Class 1 misdemeanor conviction increases to a Class I Felony conviction
- A Class 2 misdemeanor conviction increases to a Class 1 misdemeanor conviction.
Penalties for Minors in North Carolina
For minors, a criminal conviction can be devastating. Not only can a teenager end up doing jail time in the juvenile system, but having a criminal record can change a minor’s ability to find a job, rent an apartment, obtain credit, and even get into a college or university.
When a minor who is aged 15 or under is charged with drug possession charges in North Carolina, the case typically will go through the state’s Juvenile Court System. Under North Carolina law, even though a person who is 17 or 18 years old is still a minor when it comes to many federal and state laws, a “juvenile” is defined more narrowly as someone who is under the age of 16.
Juvenile Court typically prefers the approach of rehabilitating juvenile offenders, though incarceration is possible. Some options the judges may order are:
- Detention: The juvenile is incarcerated in a “juvenile hall” or another form of confinement such as a foster family or juvenile home. This is typically reserved for repeat offenders or those who committed drug possession as part of other more serious crimes.
- Diversion: A form of probation, like adult probation, that does not involve having to appear before court and the charges are dismissed after completion. This is the most lenient option reserved only for first-time offenders.
- Probation: Similar to probation for adults, the juvenile can be ordered to remain in school, find employment (if old enough), perform community service, enroll in drug counseling with his or her parents, and any other number of combination of activities. Probation typically lasts at least six months, and there may be probation officers keeping up with the juvenile’s progress or conformance to the probation order.
For minors 16 or older, drug charges become much more serious as they can face the same kinds of charges as adults with long-term consequences. If a minor was already convicted and it was their first offense, a First Offender Program may allow the minor to have possession charges removed from their record. This involves enrolling in and successfully completing a 15-hour drug education program. These programs are available
Additionally, minors with no prior drug convictions may be granted immunity in accordance with N.C.G.S § 5-90-96.1 if they disclose the identity of the person(s) from whom they obtained the controlled substance(s).
Federal Drug Possession Penalties
While Federal prosecutors are generally not interested in going after simple possession cases unless they take place on federal property, possession of a controlled substance for personal use is still a federal crime. Federal penalties for simple possession are addressed under 21 U.S.C § 844 and the severity of penalty is largely based on number of prior convictions, as such:
- No prior convictions: Less than 1 year in prison, or a minimum fine of $1,000 or both
- One prior drug conviction (in federal or any state court): 15 days to 1 year in prison and a minimum fine of $2,500.
- Two or more prior drug convictions: 90 days to 3 years in prison and a minimum fine of $5000.
In addition to the above penalties, those convicted of the above are fined the “reasonable costs” of the investigation and prosecution.
Understanding Concurrent Jurisdiction in Drug Crimes
The federal government has concurrent jurisdiction with all states, which means you can be prosecuted in both federal and state court for the same drug offense. This does not violate the double jeopardy clause in the fifth amendment of the federal constitution, which states that you cannot be prosecuted twice for the same crime by the same sovereign entity. This is because state and federal governments are essentially separate government entities. However, the federal court has the doctrine of preemption, meaning that federal law can impede state law in circumstances where they conflict.
While an offense has potential to be tried in both courts, this does not mean that every state drug offense will reach the federal government, or that a federal charge will also result in state charges. Typically, the federal government and state governments have different priorities for drug enforcement, such as the federal government often looking for bigger cases involving interstate or multi-state operations. However, you should be aware that there still are cases where people face both state and federal prosecution for simple possession offenses. Whether facing state, federal or both charges, it is critical that you contact an attorney skilled at tackling all kinds of drug charges at both a state and federal level. The attorneys at Tarlton Polk have handled many drug cases in state and federal court, so we know how to navigate these complex cases with prowess.
Defending Drug Possession Charges
Successfully defending drug charges in North Carolina or federal court requires a meticulous assessment of all the factors involved in the case. A skilled drug defense attorney can uncover the weak points in the prosecution’s case against you and target them, as well as target aspects of the law that can be interpreted in your favor. Below are some examples of ways your lawyer could argue that you were not guilty of the charges against you or should receive a lighter sentence:
Argue the Search was Unconstitutional
The Fourth Amendment protects against “unreasonable” searches and seizures. Generally, police need a search warrant to search your home, which must be supported by probable cause. Since getting a search warrant isn’t always practicable, police can also search you on the street if they have probable cause that you have or are about to participate in a crime.
Often, the police do not have probable cause, which must be more than a hunch or guess. Instead, officers routinely search people based solely on suspicions and little else, which makes the search illegal. You can suppress any drugs found in an illegal search, which will prevent the prosecutor from introducing them into evidence.
Of course, there are some exceptions to the warrant requirement. If the drugs are in plain view, sitting on your passenger seat, then the police can seize them. Police can also enter your home if they are in hot pursuit. Your lawyer can review the circumstances surrounding the search and seizure to make sure the police complied with your constitutional rights.
Argue you did not Knowingly Possess the Drugs
To be convicted under the law, the prosecutor must prove the following beyond a reasonable doubt:
- You possessed the drugs.
- You had knowledge of the possession and of the illegal character of the item possessed.
In practice, this means it is not enough for a prosecutor to show that you had drugs in your pocket or in a package you were holding. Instead, the state needs to show you knew the drugs were in your possession. For example, you might have put on a friend’s jacket when you went out in the evening. If drugs are in the pocket, you can argue that you did not know they were there, or did not know what they were, among other things.
Argue that the Substance You were Caught with were not Drugs
The state needs to prove you possessed an illegal substance. Frequently, they will send the drugs to a lab for analysis, and test results will be used to show you possessed illegal drugs. Fortunately, there are a couple ways you can challenge this lab analysis. For example, you might be able to point to gaps in the chain of custody, which raises doubt that the lab actually tested the substance in your possession. Alternately, a skilled lawyer might challenge the quality of the testing, such as pointing to the test device’s possibly known false-positive rate for particular drug identification.
Speak with a North Carolina Criminal Defense Attorney
It is important to recognize that not all these approaches are applicable to every case, and misuse of any of the above defenses could harm the credibility of the defense. Our lawyers at Tarlton Polk are skilled at devising the most effective defense strategy and know how to stick to it credibly while still readily adapting to changes as the case develops. If you or a loved one has been arrested for drug possession, you need to begin building your defense immediately, please call us today.