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North Carolina’s drug laws are among the harshest in the country, with punishments that range from court costs to substantial prison sentences. In addition, a person charged with a drug crime in North Carolina may also face federal prosecution.
A person accused of a drug crime is well advised to speak to an experienced drug lawyer as quickly as possible in the process. In some cases, speaking with an attorney before a charge can avert the embarrassment of an arrest. For instance, if you suspect an arrest is imminent or if you believe that charges may be coming, it is usually in your best interest to consult confidentially with an attorney who handles drug cases.
Raleigh has plenty of good lawyers. Finding the right one depends on your case, and your personality. You want to make sure you have confidence in the lawyer you hire. Confidence and trust are qualities you develop over time in a lawyer who listens to your case, knows the law, and is able to advise you appropriately about steps you should take to protect your rights.
First, you should hire a lawyer who primarily or exclusively practices criminal defense law. Hiring a lawyer who practices in many different areas may work out in the end. But the danger is that the lawyer is unfamiliar with the law or procedure in criminal law and, in particular, in the prosecution of drug offenses.
Second, you should hire an experienced lawyer who is unafraid of going to trial. While it is true that only about 5 percent of criminal cases go to trial in the United States, the outcome of your case can depend greatly on whether the lawyer you’ve chosen is prepared to go to trial. Trial is one of the few tools available to a person charged with a crime. If the person or his or her lawyer signals to the prosecutor that they are unwilling to go to trial, the prosecutor now knows that the case is probably unlikely to ever reach the trial stage. The end result can be a plea offer or resolution that is much worse than might be achieved if the prosecutor was faced with the possibility of trying the case.
Third, you should hire a lawyer who practices in your locality. If your case is a Wake County case, you should hire a Wake County lawyer. (There are certain rare exceptions to this proposition, especially in politically sensitive cases.) Hiring a lawyer who practices in the city (Raleigh, for instance) where your case is being handled can help keep legal fees lower than they otherwise would be. In addition, a lawyer who practices criminal defense law in that city will be familiar with the various prosecutors, judges, and law enforcement, and should have good working relationships with those people.
Fourth, you can ask friends, but don’t rely exclusively on their advice. Many people who use lawyers for one purpose don’t really know whether their case was resolved competently. Perhaps the good outcome they achieved was luck. Perhaps the bad outcome they had was because they had a terrible case. Online reviews can be one source. The Bar provides information on the disciplinary records of lawyers.
If you’ve been charged with a drug crime, about 95 percent of all drug crimes have one of the following six possible outcomes.
If all plea offers are rejected or none are offered, a case will likely go to trial, in which case the person charged with the crime will be found Guilty or Not Guilty. If found Not Guilty, the person may be entitled to an expungement to have his record wiped clean of any indication that there was an arrest or a charge. Misdemeanor trials typically take place in District Court in front of a judge; Felony trials must take place in Superior Court with a jury of 12 in North Carolina to decide the guilt or innocence.
If found Guilty of a drug offense, the judge will listen to both the State and the Defense before imposing a punishment. For low-level misdemeanor crimes, the punishment may simply be court costs and a fine. For high-level drug trafficking cases, the judge will be required to impose at least a minimum prison sentence, depending on the kind of drug and the weights involved.
A trial can involve either a trial on the merits – the guilt or innocence – or a Motion to Suppress. In many drug cases, the defense’s strongest issue turns on the question of the legality or constitutionality of the search of the home, vehicle, or storage facility where the drugs were found. A motion to dismiss may be dispositive of the case. If granted, the Defendant likely wins. If denied, the Defendant likely loses.
In a plea agreement, the State agrees to dismiss some charges or reduce the punishment, in exchange for the person’s guilty plea. In cases involving cooperation or “substantial assistance,” the person agrees to work with prosecutors or law enforcement to provide information about his involvement in drugs, and possibly to assist law enforcement in drug buys or phone calls to other suspects. The person may be required to testify at trial against co-defendants or others involve din the drug trade. When the person is convicted of drug trafficking, cooperation or substantial assistance is the only way to avoid a mandatory minimum. Cooperation may even involve the eventual dismissal of all charges as part of a cooperation contract.
In a plea agreement with no cooperation, the State agrees to dismiss some charges or reduce the punishment, but the defendant refuses to cooperate. A person may refuse to cooperate out of principle, or because he or she fears for his or her safety. A plea agreement with no cooperation will likely reduce punishment, but may not achieve as great a reduction in punishment as a plea agreement with cooperation.
It is important that a person only cooperate with the assistance of an attorney. Sometimes people begin cooperation with authorities before hiring a lawyer, in which case any information given may be used by police, but credit may not ultimately flow to the person who gave the information.
In certain cases, a person may be eligible or may be offered participation in a diversion or deferral program. In North Carolina, N.C.G.S. § 90-96 requires a person to be offered a diversion or deferral program in certain situations, depending on past criminal history, the charge, and the drug type and weight involved. Even if the person isn’t entitled to a diversion program by statute, a prosecutor may offer a diversion or deferral program depending on the facts of the case.
Sometimes a charge is dismissed. A prosecutor has very broad discretion to charge crimes in North Carolina, and to dismiss charges. A dismissal may occur because the prosecutor recognizes that the police made some mistake in conducting the investigation, or because the prosecutor believes that the wrong person was arrested – a passenger may have been arrested when it was really the driver’s drugs.
A dismissal is not automatic, and will depend on the facts of the case.
A drug charge or conviction can affect your life in a number of ways. First, employers in North Carolina can fire an employee even if they learn of the charge, and before guilt or innocence is determined. Second, if you are in a licensed profession, such as medicine, or the law, you may be required to report the fact that you were charged or arrested to your licensing board.
Second, in certain cases, the North Carolina Department of Revenue may assess an unauthorized substance tax, which can end up being many thousands of dollars even for relatively small amounts of drugs.
Third, a drug charge may involve additional disciplinary procedures in the armed forces, including mandatory treatment or reductions in pay or rank.
Fourth, a drug conviction will obviously include whatever punishment imposed by the judge, including jail time. In addition, the conviction may affect your employability, your ability to secure certain federal loans, your ability to enter certain professions, and can even be used by apartment buildings or rental agencies to terminate apartment or house leases. In addition, a drug conviction may result in the loss of money seized in connection with the arrest.
While some drug convictions may ultimately be expungeable, many are not. It’s important to talk to a lawyer about the potential consequences you face.
Your case may take as little as a couple of weeks, or as long as years. The ultimate length of the case depends on which option you and your lawyer decide to pursue to handle the case. If you contest the charges and desire a felony trial, you can expect the case to take about a year, and probably much longer in Wake County. Other counties in North Carolina may move more quickly.
Misdemeanor drug cases and some felony drug cases may be set for resolution on the first court setting, especially if the person wishes to enter a drug diversion or deferral program. Those programs, however, typically take between six months and a year to complete, during which the charges remain pending.
In general, a lawyer who has more time to resolve a case can sometimes achieve better results. If you have some need to resolve the case quickly, you may be putting yourself in the difficult position of taking the first plea offer from the District Attorney.
A drug case typically involves an initial consultation, whether by phone ([#phone#]) or in person. We offer free phone consultations. A full consultation may last a few minutes, but in many cases can take several hours. During the initial consultation a lawyer will typically give some general advice based on a general description of the facts.
A person will then make a decision about whether to hire the lawyer, will sign a written contract, and will make a payment. We offer payment plans, depending on the case.
The criminal process begins with an investigation. That investigation may be as short as a traffic stop that reveals drugs, or may be a prolonged investigation into a drug trafficking enterprise that involves wiretaps, undercover officers, confidential informants, and surveillance.
A person may be questioned as part of the investigation. You should always ask for a lawyer to be present with you during any questioning. And, except in extraordinary circumstances, it is important that you not make any statements without first consulting with a lawyer. You can simply say: “I’d love to talk to you, officer. But I would like to have a lawyer present.” Once you invoke your right to a lawyer, the questioning should stop. If it does not stop, you should continue to repeat your request for a lawyer. And you should refuse to make any statements until you have talked to a lawyer.
After the investigation has concluded, law enforcement, sometimes in consultation with prosecution, will make arrests or issue citations. If cited, you will be given a piece of paper with your court date, and will be free to leave. You should seek the advice of a lawyer as soon as possible.
If arrested, you will be taken to jail. In Wake County, you will eventually be taken to the Wake County Detention Center on Hammond Road, where you will be fingerprinted, photographed, and appear before a magistrate. The magistrate will set the initial conditions of release. If you are able to make bond or if you are released without having to pay a bond, you may be required to appear at a First Appearance.
If you cannot make bond, you will have an opportunity to appear before a judge, usually within 24 hours. At that appearance you will either have a lawyer that you or your family have hired, or you will tell the judge you plan to hire a lawyer. If you do not believe you can afford a lawyer, you can request that the court appoint either the Wake County Public Defender (in this county) or a court appointed lawyer to represent you.
The judge will next address the terms of your detention: the bond. The judge may lower, increase, or keep the bond the say. In some cases, you may qualify for pre-trial release in which you will be assigned a caseworker to whom you must regularly report.
You can bond out of custody at any point at which your family or friends can raise the money to either fully pay the bond, or to pay a bondsman on your behalf the bondsman’s fee so that you can be released.
Your case will then continue in District Court where it may be resolved in one of the ways described above, or until it you are indicted and the case is sent to Superior Court for trial or plea. During that period, you will likely have multiple meetings with your lawyer to discuss developments in the case, to discuss your defense, and to choose which of the possible paths you wish to take.
Generally the lowest level of drug crime involves simple possession of some drug, whether it’s marijuana, cocaine, heroin, LSD, methamphetamine, or opiates. Possession may be a misdemeanor, as is the case of relatively small amounts of marijuana. Or, in the case of Schedule I drugs, possession may be a felony.
Possession with Intention to Sell or Deliver (PWISD) is a felony, regardless of the kind of drug. Usually proof of the intent to sell or deliver is inferred from the way the drugs are packaged, or the quantities, or whether there are tools nearby that may be used for packaging or distribution.
Sale, Manufacturing, and Delivering are fairly obvious crimes that involve actual evidence of such behavior. In some cases, police may not have direct evidence of a sale, but may have testimonial evidence from an informant that a sale occurred.
Trafficking has two meanings. In North Carolina, trafficking is a crime defined entirely by the quantity or weight of the drugs. In addition, trafficking only exists for certain types of drugs. Marijuana, Cocaine, Heroin or Opiates, LSD, Methamphetamine, and MDMA are some of the drugs that, if possessed, sold, or transported in significant enough quantities, are trafficking offenses.
The key difference between a trafficking offense and a PWISD, possession, or sale/manufacture charge is that a trafficking offense in North Carolina requires a mandatory minimum active prison sentence below a judge may not go unless the defendant participated in “substantial assistance.”
In the federal system, any type of drug distribution is a trafficking offense, no matter the quantity. Different mandatory minimums may apply in the federal system.
North Carolina drug laws described above typically involve a single or limited number of incidents where police observed or have fairly direct evidence of illegal conduct.
Federal drug laws are quite different. In the federal system, a defendant may be charged with a particular set of crimes based on incidents observed or known to police, but federal drug prosecution is largely driven by a concept called “relevant conduct.”
If convicted of the any of the charged drug offenses, a federal judge may sentence the defendant based on any uncharged conduct that is relevant to the charged offense. So, for instance, if the charged offense involves a couple of ounces of cocaine, but there is some evidence from debriefs of co-defendants that the person may have also been involved in kilograms of cocaine distribution, the person may be sentenced not just for the couple of ounces, but for the entire historical weights attributed to him. These determinations are made at a sentencing hearing at which the standard is not “beyond a reasonable doubt,” but “by a preponderance of the evidence.”
The result is that a person may face much more draconian punishments in the federal system than in the state system. The default position in the federal system is not probation, but an active sentence that can involve years or decades.
Finally, while very specific plea agreements may be available in state court that can make the outcome predictable, the federal system does not have robust plea bargaining. In fact, may plea agreements specifically explain to the parties that the judge is not bound by recommendations from the government about a potential sentence. At most, the plea deal may involve a stipulation as to the weight of drugs, or may involve what’s called “charge bargaining” in which the prosecution agrees to dismiss certain charges in exchange for a guilty plea to other charges.
In theory, you can be prosecuted for a drug crime by both the federal and state governments. In practice, dual prosecution is rare, and the local federal prosecutor must obtain a special letter from the United States Department of Justice in Washington, DC that permits a prosecution if the state has already prosecuted the defendant.
Usually, if the case starts at the state level and is later adopted by federal authorities, the state will dismiss the charges and the prosecution will be handled solely by the federal government.
Having handled hundreds of drug cases, from misdemeanors to major federal drug trafficking offenses, The Chetson Firm is prepared to help you defend against any drug charges you may face in North Carolina.
The firm is located at 19 W. Hargett St., Suite 508, Raleigh, NC 27601, two blocks from the Wake County Justice Center, and five blocks from the Terry Sanford United States Courthouse. A free consultation by phone is confidential. Call [#phone#] any day of the week, day or night. If we don’t immediately answer, we will try to return your call as quickly as possible.
Mr. Chetson routinely visits prospective clients who may be in custody, understanding that hiring a lawyer as quickly as possible in the process is often a good way to protect someone’s valuable constitutional rights.
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