Working on a Felony Drug Contract

Someone recently asked me:

I sold marijuana to an “informant” twice. The second time I was brought in by police and offered a deal to become an confidential informant. I was told if I brought in 5 controlled drug buys. My first buy went bad, and the cops ended up revealing my cover. After that they told me I just had to do one more buy. I can’t come up with anything substantial. I’m wondering if I have any chance of still getting my charges dropped, or at least most of them. I have no clue how the law works. Should I get a lawyer?

The short answer is that you should have gotten a lawyer from the very beginning. If you are arrested on a felony drug charge and offered the opportunity to cooperate – either by providing information or by setting up potential drug buys – you should always have an attorney on your side to make sure that the deal you’re offered is a good deal. In addition, you should have an attorney who can help you work with police to get credit for everything you do.

Many contracts technically fail – meaning that the defendant has trouble providing all the assistance the defendant said he would provide at the beginning of the contract. But a good attorney is sometimes able to get the defendant credit for his good faith efforts to succeed on the contract.

Warrantless Dog Sniffs in Drug Cases

Police conducted a warrantless dog sniff test by a dog trained in drug detection at Joelis Jardines’ home five years ago. The police had received an unverified tip that Jardines’ home was being used to grow marijuana.

Under well established constitutional law, the unverified tip did not create probable cause.

In December 2006, police went to the home, and observed it for fifteen minutes. There were no cars in the driveway, the blinds were closed, and there was no observable activity.

After fifteen minutes, a dog handler arrived with a drug detection dog. The dog and the handler walked to the door. The dog alerted to the scent of contraband. Forget for a moment that dogs are notoriously unreliable when it comes to drug detection.

The dog was considered reliable enough to create probable cause. The detective also noted that the air conditioning unit was running constantly – consistent with the use of hydroponic grow lights in a marijuana grow operation.

Based on these observations, police obtained a warrant, and conducted a search, ultimately charging Jardines with drug trafficking.

While the U.S. Supreme Court has adddressed dog sniff tests in three cases – U.S. v. Place, 462 U.S. 696, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, it has not decided a dog sniff case in the context of a front door, warrantless sniff of a home.

However, in Kyllo v. U.S., the Supreme Court held that people have an expectation of privacy such that the use of thermal imaging technology, which is not typical in every day life, to detect a grow operation was clearly a violation of that privacy.

In 2011, the Florida Supreme Court ruled in State v. Jardines that the sniff test conducted at his home was in fact an intrusive procedure, and that since Jardines had an expectation of privacy, the warrantless search was unconstitutional.

The Supreme Court has granted a Writ of Certiori which means the case will be heard by the Supreme Court for an ultimate decision.

Raleigh Drug Lawyer: Handling a Drug Case in North Carolina

If you’ve been arrested for a drug crime in North Carolina, it’s possible for you to be charged under a number of different statutes:

  1. Misdemeanor Drug Laws
  2. Felony Drug Laws
  3. Felony Drug Trafficking Laws
  4. Federal Drug Laws and Federal Drug Trafficking Laws

If you are accused of trafficking in drugs or conspiracy to traffic in drugs, it’s possible for you to be charged by the State authorities – your county prosecutors such as the Wake County District Attorney – or by federal authorities – such as the United States Attorney for the Eastern District Attorney. In fact, since each level of government is considered a separate sovereign, it’s possible – although generally not the case – for you to be tried and prosecuted by both the state and the federal governments. Usually, however, if one entity decides to prosecute you, then the other entity will decline prosecution.

Generally – although not always – if you had to choose, it’d be better to be charged and prosecuted under state law for two reasons. First, state laws, while still very punitive, tend to be somewhat less punitive than federal laws. Second, federal sentencing has a concept called “relevant conduct” that allows a judge to punish you for any relevant drug or other criminal violations even though those violations may be uncharged or even though a jury may have found you not guilty of those violations. Since “relevant conduct” can create the possibility of being punished even if you are found “not guilty” of almost all charges, there is tremendous pressure in the federal system to enter into a plea agreement with the government.

North Carolina Misdemeanor Drug Laws

Misdemeanors, as the name suggests, are less serious criminal offenses, usually punishable by court costs, fines, and, possibly, probation. Only rarely is a misdemeanor drug conviction or misdemeanor marijuana possession conviction punished by jail time.

North Carolina has a number of misdemeanor drug laws, including, but not limited to:

  1. Misdemeanor Possession of Drug Paraphernalia

    N.C.G.S. § 90-113.22. Possession of drug paraphernalia.
    (a) It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess, or to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.

    (b) Violation of this section is a Class 1 misdemeanor.

  2. Misdemeanor Possession of Marijuana punishable as a Class 3 or Class 1 Misdemeanor:

    A controlled substance classified in Schedule VI [marijuana] shall be guilty of a Class 3 misdemeanor, but any sentence of imprisonment imposed must be suspended and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation. If the quantity of the controlled substance exceeds one?half of an ounce (avoirdupois) of marijuana or one?twentieth of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, the violation shall be punishable as a Class 1 misdemeanor.

  3. Misdemeanor Possession of Schedule V Drugs Punishable as a Class 2 Misdemeanor:

    1. Not more than 200 milligrams of codeine or any of its salts per 100 milliliters or per 100 grams.
    2. Not more than 100 milligrams of dihydrocodeine or any of its salts per 100 milliliters or per 100 grams.
    3. Not more than 100 milligrams of ethylmorphine or any of its salts per 100 milliliters or per 100 grams.
    4. Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit.
    5. Not more than 100 milligrams of opium per 100 milliliters or per 100 grams.
    6. Not more than 0.5 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
    7. Pyrovalerone.

  4. Misdemeanor Possession of Schedule III, or Schedule IV punishable as a Class 1 Misdemeanor.

North Carolina Felony Drug Laws

Felonies are more serious drug charges that are punishable, usually, by probation and possibly prison time, especially if the person has a bad criminal record. Most North Carolina drug felonies are Class G, H, or I felonies with the exception of Drug Trafficking Laws (covered below). Meth manufacture may be punished as a Class C felony.


  1. Sell Heroin, Sale of Heroin, or Sale of Opium or Sale of Cocaine or Sale of any Schedule I or Schedule II are punishable as Class G felonies.
  2. Manufacture of Methamphetamine (Meth) is punishable as a Class C felony, unless the manufacture of meth merely involved packaging or labeling the drug in which case it is punishable as a Class H felony.
  3. Sale of Scheduled III, Schedule IV, Schedule V, and Schedule VI drugs are punishable as Class H felonies. This includes the sale of marijuana, which is a Scheduled VI drug and punishable as a Class H felony.
  4. Possession with Intent to Sell and Deliver (PWISD) of Schedule III through Schedule VI drugs, except cocaine and heroin, is a Class I felony.
  5. Possession with Intent to Sell and Deliver (PWISD) or sale of a counterfeit drug is punishable as a Class I felony.

North Carolina Drug Trafficking Laws

At the top of the pyramid of drug laws are Drug Trafficking Laws. These are laws that prohibit the large scale possession, transportation or distribution (sale) of controlled substances, even though in certain cases the amounts that qualify as drug trafficking weights are not very large at all.

Drug Trafficking laws in North Carolina are characterized by two components. First, they require a mandatory minimum jail sentence. A person convicted of drug trafficking will spend time in prison. Second, the only way to avoid prison time if convicted of a drug trafficking crime is by providing “substantial assistance” (known on the street as “snitching”) to authorities. If a judge finds that substantial assistance has been offered by the defendant, the judge may deviate from the mandatory minimums and impose a lesser sentence, including probation.

In order to take advantage of substantial assistance, it is almost always important to contact a lawyer as early in the process as possible. Since most valuable information or the ability to assist law enforcement in making covert drug buys vanishes pretty soon after arrest, it’s important that you act quickly if you believe that substantial assistance may be the right way to go in your case.

Next, it’s important to participate in a substantial assistance agreement with prosecutors under the guidance of your own lawyer. By working with a lawyer, you can ensure that you get full credit for all the information and cooperation you provide to police or prosecutors.

Each drug trafficking category has three or four levels of punishment.

  1. Trafficking in Marijuana
    1. 10 pounds up to 50 pounds – 25 to 30 months in prison.
    2. 50 pounds up to 2,000 pounds – 35 to 42 months in prison.
    3. 2,000 pounds up to 10,000 pounds – 70 to 84 months in prison.
    4. 10,000 pounds and above – 175 to 219 months in prison.

  2. Trafficking in Methqualone
    1. 1,000 up to 5,000 dosage units – 35 to 42 months in prison.
    2. 5,000 up to 10,000 dosage units – 70 to 84 months in prison.
    3. 10,000 dosage units and above – 175 to 219 months in prison.

  3. Trafficking in Cocaine (including Crack or Powder)
    1. 28 grams (about 1 ounce) up to 200 grams – 35 to 42 months in prison.
    2. 200 grams up to 400 grams – 70 to 84 months in prison.
    3. 400 grams and above – 175 to 219 months in prison.

  4. Trafficking in Heroin or Opium
    1. 4 grams up to 14 grams (half ounce) – 70 to 84 months in prison.
    2. 14 (half ounce) grams to 28 (ounce) grams – 90 to 117 months in prison.
    3. 28 grams (ounce) and above – 225 to 279 months in prison.

  5. Trafficking in LSD
      100 dosage units up to 500 dosage units – 35 to 42 months in prison.
    1. 500 up to 1,000 dosage units – 70 to 84 months in prison.
    2. 1,000 dosage units and above – 175 to 219 months in prison.

  6. Trafficking in MDMA

    1. 100 tablets up to 500 tablets – 35 to 42 months in prison.
    2. 500 up to 1,000 tablets – 70 to 84 months in prison.
    3. 1,000 tablets and above – 175 to 219 months in prison.

Substantial Assistance

Substantial assistance is the only way that someone convicted of a drug trafficking charge can avoid a mandatory minimum sentence in North Carolina. (There may be other ways to avoid a drug trafficking conviction through a negotiated plea agreement, or by winning after a jury trial.)

Substantial assistance involves talking to police officers about all that the person knows after “pleading in” to the drug charge. Sometimes the defendant will know exactly what he can expect to receive as a benefit for his cooperation. Other times the defendant may plead in without knowing exactly what benefit he might expect.

In either case, cooperation is generally supposed to be full and open, meaning that no secrets can be kept from the police with respect to illegal drug activity. Cooperation usually occurs during a “debrief” where a person’s attorney and police either meet in a confinement facility (such as a jail) or at an office where the person is interviewed about all he knows about drug activity.

Most plea agreements require the person to cooperate fully, with the punishment being a loss of any benefit from the agreement if the person has been shown to be less than truthful during debriefs. In drug cases, a single defendant may be just one of many sources of information that the police are privy to. Law enforcement will generally ask the defendant questions while already knowing the answer in order to test the defendant’s truthfulness. Sometimes lie detectors (or polygraph or voice stress analyzers) may be used as part of the debrief process.

Contracts

Part of substantial assistance may involving working for the police as part of a contract. A contract is a negotiated and written agreement which promises some benefit (reduction of charges, dismissal of charges, or reduction of punishment) in exchange for the defendant helping police either by providing information, or by participating in controlled drug buys. A contract might also include the defendant helping to perform hand-to-hand drug transactions in exchange for the defendant earning a reduction or dismissal of the charges.

A drug cooperation contract can be used in any trafficking or felony drug case. Drug contracts normally are not used for misdemeanor cases which are considered to minor to warrant a contract.

Drug Diversion or Felony Drug Diversion Programs

North Carolina has a number of drug diversion programs, called 90-96 programs, that can allow someone with no criminal record (or a very minor criminal record) to participate in drug treatment programs, possibly perform community service, and stay out of trouble. A diversion program may last six months or a year. Typically the program involves an admission of guilt at the beginning of the program, so that if the person fails to comply in some respect and violates the terms of the program, the prosecutor will be able to convict the defendant for the original offense.

In some counties, prosecutors will place the individual on probation for a year, and at the end of probation, if the drug diversion program has been successfully completed, the Assistant District Attorney will dismiss the charge.

In Wake County, the person is not placed on probation, but is rather placed on a program with periodic check-in (or review dates) during which progress is reviewed. If the person is on his way to completing the program, then no action is taken at a review date. However, if the person has not completed at least part of his treatment or community service, a prosecutor may ask the judge to violate the defendant on the program and judgment for the original set of charges will be imposed.

As of December 1, 2011, North Carolina has made the misdemeanor drug diversion program mandatory upon conviction of a first-time marijuana or misdemeanor possession of drug paraphernalia (PDP) charge. Even if the defendant goes to trial and loses, the defendant will be offered 90-96 at the conclusion of the trial by the judge. This program is typically one year long, and requires participate in a drug treatment program. No community service is required. In Wake County, Southlight Judicial Services manage both the misdemeanor and felony drug diversion programs.

Trial on Drug Charges

If no acceptable plea has been offered, a person may wish to choose to have a trial. If charged with a misdemeanor drug charge, the person may have a bench trial in District Court with a judge determining whether the person is guilty. If the person wins the trial, the case ends. However, if the person ends and wishes to appeal, the person is entitled to a de novo jury trial in Superior Court. Because of the tremendous backlog of cases in Superior Court, a person may not have a trial for a year or two after the completion of his District Court case.

If the person has been charged with a felony drug crime – Possession, PWISD, Trafficking – then the person can choose to have jury trial in Superior Court.

Many drug cases involve claims by the defendant that police conducted an illegal search of the vehicle, home, dwelling place, or storage facility where the drugs were found. These issues are decided by a Superior Court Judge following a suppression hearing. A suppression hearing usually involves testimony by the police officer about the probable cause he or she had to search the defendant’s property.

Drug Laws: Banning Brain Stimulants

Earlier this year, North Carolina banned bath salts and synthetic marijuana after media reports suggesting an increase in deaths as a result of overdoses. The reports were overblown – overdoses have been rare.


  1. 4-methylmethcathinone (also known as mephedrone, sold as “Plant food”): – Class I Felony
  2. 3,4-Methylenedioxypyrovalerone (also known as MDPV, sold as “Bath Salts”); – Class I Felony (less than 1 gram is a Class 1 Misdemeanor)
  3. and a compound, other than buproprion, that is structurally derived from 2-amino-1-phenyl-1-propanone by modification in one of the specified ways.

N.C.G.S. 90-94 adds synthetic cannabinoids (such as K-2) as a Schedule VI controlled substance (regulated the same as marijuana).


  1. Class 3 misdemeanor for seven grams or less
  2. Class 1 misdemeanor for more than seven and up to 21 grams or less
  3. Class I felony for more than 21 grams.

The Federal Government is going one step further, with Congress passing a bill that governs not just specific, chemically identified substances, but prohibits “cannabimimetic agents” (substances that mimic the effects of marijuana) defined as:

any substance that is a cannabinoid receptor type 1 (CB1 receptor) agonist as demonstrated by binding studies and functional assays within any of the following structural classes

and any preparation

which contains any quantity of cannabimimetic agents, or which contains their salts, isomers, and salts of isomers

As Mindhacks.com notes this may be the first attempt to ban a specific brain function – which is to say, anything that binds with a specific receptor in the brain.

The Drug War has finally become essentially a battle over how your mind may function.

Montana Jury Pool Refuses to Convict Man of Marijuana Possession

Voir Dire is the procedure by which both sides in a trial try to select a jury that will be fair and impartial to the State and to the Defendant. The judge and, at least in state courts, both the prosecutor and the defense attorney ask the potential jurors about their views and whether they can decide fairly.

Each side gets to strike a certain number of potential jurors – in North Carolina, each side gets six peremptory challenges – and excuse those jurors from service without giving a reason at all (although pursuant to Kentucky v. Batson a prosecutor may not exclude jurors solely on the basis of race).

But what happens when potential jurors say they will refuse to follow the law and convict the Defendant for marijuana possession? Here’s a story from Montana, normally considered a conservative state, where potential juror after potential juror expressed the position to the judge that he or she would not convicted the defendant for pot possession.

Top 10 Drug Crime Myths

Many people assume that, upon an arrest for a drug crime, they will be convicted, ruining their chances of keeping or finding a job, or even keeping their freedom.

Parents often assume that a drug arrest will necessarily mean their child will never be able to attend college, or lead a successful or fulfilling life.

While a Wake County drug charge requires a good Raleigh drug lawyer, there is hope. Let’s look at some common myths.

  1. A drug crime is not serious, and we can handle it on our own without hiring a Raleigh lawyer.

First, before we talk about the ways to help you, let’s look at some of the ways that a drug charge is a serious matter. Even a misdemeanor drug charge, such as possession of drug paraphernalia or a misdemeanor possession of less than a half ounce of marijuana, is a serious charge.

If you’re a first time offender facing such a charge, you are probably going to be eligible for the N.C.G.S. 90-96 program, which as of December 2011 a judge must order (instead of imposing a conviction.) Consult with a lawyer about your eligibility, but it’s almost always wise to have an attorney by your side even if you are eligible for this program because, in criminal cases, anything can happen.

But if you’ve had other criminal offenses that make you ineligible for the program, or if you’ve been charged with a Felony and are therefore ineligible for the program, you should be careful about handling these cases on your own.

That’s because a drug conviction can make you ineligible for certain jobs, ineligible for certain types of student loans, and ineligible for admission to certain colleges.

 

  • The police found the… hydrocodone, oxycontin, dilaudid, etc… on me. I will be convicted.

 

Obviously there are a lot of factors that may increase or decrease your chances for conviction, but a police officer may not simply identify the pill, and then get on the stand to testify as to what the pill was. Such layman interpretation of the markings on the pill, even if done by an analyst at the State Bureau of Investigation (SBI), is not sufficient to prove the drug is what the state purports it to be.

Even your admission that the drug is what the state purports it to be will generally not be enough to prove it is a controlled substance. That’s because in State v. Ward, the North Carolina Supreme Court held that a Micromedex identification of the drugs (by using the color of the pill or markings on the pill) was not sufficiently reliable to say what the pill was. The state must test sufficient quantities of the pills to prove they are chemically the controlled substance in question.

We’ve had cases where the police have the pills, throw them out in front of the defendant (for instance, down the sink), and then still charge the defendant with possession of a controlled substance. Obviously in those cases there is no way for the State to prove the substance was an illegal drug.

 

  • The police said that if I cooperate, I will earn a dismissal

 

This is not quite a myth – it is possible to cooperate with police, and thereby earn a dismissal of the charges. However, any cooperation should be overseen by your lawyer, so that you are sure you are getting credit for the cooperation you have given, and to be sure that the promised prize – the dismissal – is actually granted at the end of the case.

Too often we see defendants who were persuaded to cooperate, claim they have cooperated fully, but apparently don’t receive the benefits of the cooperation.

 

  • It is best for me (or my child) to give a full a frank statement to police about his activity.

 

Sometimes people believe they should cooperate fully – or parents pressure their children to cooperate fully – with a police officer.

While cooperation may be a good route to take – this is generally called “substantial assistance” – it should always be done with a lawyer present (as explained above).

But there’s an added problem with cooperating with police without the help of a lawyer. The police may use any statements made during the cooperation against the defendant – you or your child – which means that what may originate as a small drug charge, may end up as a much more serious and complicated series of charges after the suspect – you or your child – are done telling the police everything you may have done.

There are ways to protect a person, but those need to be done with a lawyer, who can help you or your child enter into an agreement with the State or the United States (if it’s a federal case) that protects the statements given so they can’t be used against you or your child later on if things take a nasty turn.

 

  • I should give consent to the police to search my home, my car, my belongings…

 

It is never a good idea to give consent to search. If police come to your home, or stop you in your car, you should never give consent to search. In fact, if you can remember to do so, you should explicitly say “I don’t give consent to search.”

A police officer may still potentially search your home or car, but that search will be valid only if particular legal requirements are in place, including, but not limited to, a valid search warrant.

Many searches are illegal, but never see a courtroom because the defendant gave consent – “I’ve got nothing to hide!”

Whether or not you’ve got anything to hide, the constitution grants you the right to safe and secure in your home, your person, and your belongings, and you should take advantage of that by refusing to consent to a search.

If the police do decide to search even without your consent, step aside to let them do so. Physically resisting or interfering with a search may result in additional criminal charges against you.

 

  • I only had a small number of pills… These charges will be easy to resolve.

 

North Carolina has very harsh drug trafficking statutes (N.C.G.S. 90-95) which kick in, for opiates, and just four grams. Four grams is about 1/6th of an ounce. Because the statute says that the it is trafficking to have 4 grams of opiates or more, including the weight of any mixtures (fillers), a person may be accused of and potentially convicted of Level I Trafficking in Opiates on the basis of an extremely small number of pills – under 30.

And because North Carolina’s drug trafficking statutes impose a mandatory minimum sentence of 70 months (about 6 years) in prison. The only way to be convicted of such a charge and avoid a 6 year sentence is by providing “substantial assistance.”

Many people coming from other states or jurisdictions are shocked at how harsh North Carolina’s drug laws are.

 

  • The drug laws are fair and equitable.

 

Very few people actually belief the drug laws are sensible, wise or equitable – especially people, judges, police officers, or lawyers – who are involved in the criminal justice system. Most people recognize the inequity and harshness of them, including the incredible abuses that occur to our liberties as a result of a 40 year drug war.

But let’s look at one small example of how these laws are not fair. If you’ve got no job prospects and start slinging crack rock, get busted or snitched on and pick up a felony you’ve just made yourself a convicted felon. Whatever meager job prospects effectively go away, and now it’s illegal for you to hold a handgun, which makes it even more dangerous to sling crack rock without protection.

The second time around you’re arrested, this time with a gun, so you plead guilty to a second felony. After serving a year or so in jail, you come out, even less well-equipped to have a job, and now you’re selling crack again.

This time you’re arrest, and you take yet another plea, but you’ve now made yourself a habitual felon.

While the Habitual Felon laws were amended to make them slightly less harsh this year, you’re still eligible in North Carolina for a four level enhancement upon conviction as a convicted felon, which increases your possible sentence to 4 or 5 years, or more.

That’s not equitable, not fair, and no sane, for the sole act of selling something that other people were willingly buying.

 

  • I’ll get rich dealing drugs, and if I’m caught, I’ll just squirrel away enough.

 

Actually, you won’t. My favorite show of all time is The Wire by David Simon. He essentially draws a parallel between corporate America, the political world, and the drug world. In each of these worlds, there are people at the very top who profit off the backs of the work of people at the bottom. In the drug world, the kingpins profit off the work of the corner boys.

In North Carolina, to add insult to injury, if you’re caught selling, possessing, or transporting even a moderate amount of drugs, you can expect a tax bill. This bill – affectionately known as the Crack Tax – is officially called the Unauthorized Substance Tax Assessment or U-Sub.

The idea is to effectively punish someone twice for first, having the illegal substance which is a criminal offense, and for then taxing that person for failing to report the sales of that substance over the course of the alleged illegal conduct.

Even though the unauthorized substance tax is meant to apply to dealers, people who have merely had an addiction to a substance can be faced with the tax assessment.

 

  • I’ve had it up to here with my child. I’m going to let him face the consequences, whatever they are.

 

We meet a lot of parents for whom the arrest of their child by the drug cops is the end of the line. They’ve had it up to here and now want their kid to sink or swim. While it’s understandable to take this view, the criminal justice system is a very harsh way to punish someone, especially someone in their teens or twenties who has made a series of mistakes.

The reason is that a drug conviction after the age of 18 is permanent – there is no way to expunge it – and it could affect a person’s ability to get federally subsidized student loans, enter the military, go to college, and get a job.

While it’s understandable to want to draw the line somewhere, it probably is not the right decision to draw the line at helping in a criminal situation. There are plenty of other ways to hold a child accountable. Doing it by letting them “rot in jail” or “get a conviction” is a sure way to impose life-changing consequences that can never be undone.

 

  • A Drug Charge is the End of the World

 

While a drug charge is serious – as outlined in this article – it is not necessarily the end of the world. Where drug diversion or deferral programs are not available, you may need to fight the charge either through a trial or a suppression motion. Perhaps cooperation is the right way forward.

Maybe it’s a federal drug trafficking case where you’re eligible for 5K1.1 (“substantial assistance”) or USSG 3553(e) (“safety valve”) help that can reduce the punishment available to you.

Maybe it’s a case in which you can enter into a contract with the police and prosecutors to “do work” which results in a lesser charge or an outright dismissal.

In any case, you should consult with a Raleigh drug lawyer to see how to effectively handle your case.

The Crack Tax

If you’ve been arrested for a drug crime in North Carolina – whether it’s possession with intent to sell or distribute (PWISD), drug trafficking, drug sale, drug possession, or drug manufacturing or obtaining a controlled substance by prescription fraud – the tax man might come knocking.

That’s because in North Carolina, the state’s Department of Revenue has a special criminal investigative division (CID) that enforces North Carolina’s tax laws and imposes an Unauthorized Substance Tax. The tax rates are available here.

The rates are absurd. For instance, a gram of crack cocaine may go for $40 to $50 on the street. The North Carolina DOR assesses a tax of $50/gram of cocaine, which makes the effective tax rate 100%. What other product in the world is taxed at 100% rate?

The tax rate is merely a way to punish people twice: first punish them in the criminal system with probation or prison time, and then punish them financially with these silly taxes.

The idea is to tax “dealers” who may have been selling such substances without assessing such taxes on the buyers. In other words, it’s kind of like a sales tax.

The idea is that a drug dealer, while he’s violating the state’s substantive law with respect to the illicit sale of, say, heroin, or marijuana, should be filing and paying taxes on the sale of such substances. (Al Capone was convicted not because he dealt in illicit alcohol, but because he failed to pay his “taxes” on those sales.)

There’s even a tax form that drug dealers can file with the Department of Revenue so that while they’re committing the offense of selling drugs, they’re complying with the tax laws.

Of course, no one who deals drugs illegally complies with the tax laws.

Therefore, upon their arrest for the illicit possession of dealer-quanity of drugs, the Department of Revenue swoops in to seize property and attempt to collect on “ill gotten” gains.

The problem becomes that many people are arrested and charged with felonies because they have an addiction problem, and have illegally obtained significant quantities of drugs in order to fee their habits. The Department of Revenue doesn’t care. They will swoop in to try to collect on such people for “uauthorized substance taxes” even though such people were never dealers, only users.

Mandatory Drug Diversion – N.C.G.S 90-96 Improved

North Carolina’s Drug Diversion program got a important overhaul with the change of just one word – “may” – into “shall”. Under the prior law valid until November 30, 2011, a judge could, but was not required to, enroll an individual into a drug diversion program if the person had not previously been convicted of an offense. (See the North Carolina Justice Reinvestment Act, effective December 1, 2011.)

The new law requires – “shall” – a judge to place an individual into a drug treatment program, in exchange for a complete dismissal of the person’s charges, if the person is charged with a felony drug possession misdemeanor drug charge of any type and the person has never been convicted of a felony offense or misdemeanor or felonyh drug charge.

This law does not apply to persons’ charged with Possession with Intent to Sell or Deliver (PWISD), the Sale or Manufacture of Drugs, or drug trafficking charges. For those people, convictions are likely, absent effective representation, the use of substantial assistance, or drug contracts wherein the person works off a conviction through cooperation with police.

This is a one-strike-and-you’re-out law: if you participate in the program, and complete it successfully, but get arrested for a new offense, you are ineligible to complete the program a second time. That said, a District Attorney can always dismiss or enter into a deferred prosecution agreement at any point.

N.C.G.S. 90-96

(a) Whenever any person who has not previously been convicted of (i) any felony offense under any state or federal laws; (ii) any offense under this Article; or (iii) an offense under any statute of the United States or any state relating to those substances included in Article 5 or 5A of Chapter 90 or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes pleads guilty to or is found guilty of (i) a misdemeanor under this Article by possessing a controlled substance included within Schedules I through VI of this Article or by possessing drug paraphernalia as prohibited by G.S. 90-113.22 , or (ii) a felony under G.S. 90-95(a)(3), the court shall, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as it may require. Notwithstanding the provisions of G.S. 15A-1342(c) or any other statute or law, probation may be imposed under this section for an offense under this Article for which the prescribed punishment includes only a fine. To fulfill the terms and conditions of probation the court may allow the defendant to participate in a drug education program approved for this purpose by the Department of Health and Human Services or in the Treatment for Effective Community Supervision Program under Article 6B of Chapter 143B of the General Statutes. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the additional penalties imposed for second or subsequent convictions under this Article. Discharge and dismissal under this section or G.S. 90-113.14 may occur only once with respect to any person. Disposition of a case to determine discharge and dismissal under this section at the district court division of the General Court of Justice shall be final for the purpose of appeal. Prior to taking any action to discharge and dismiss under this section the court shall make a finding that the defendant has no record of previous convictions as provided in this subsection.

(a1) Upon the first conviction only of any offense included in G.S. 90-95(a)(3) [mere possession] or G.S. 90-113.22 [possession of drug paraphernalia (PDP)] and subject to the provisions of this subsection (a1), which qualifies under the provisions of subsection (a) of this section, and the provisions of this subsection, the court may place defendant on probation under this section for an offense under this Article including an offense for which the prescribed punishment includes only a fine. The probation, if imposed, shall be for not less than one year and shall contain a minimum condition that the defendant who was found guilty or pleads guilty enroll in and successfully complete, within 150 days of the date of the imposition of said probation, the program of instruction at the drug education school approved by the Department of Health and Human Services pursuant to G.S. 90-96.

Don’t Eat Crack Cocaine

In State v. Ward, the North Carolina Supreme Court held that North Carolina’s prosecutors cannot rely upon a visual examination of alleged drugs to show to a finder of fact – a jury, for instance – that the drugs are in fact contraband. In other words, visual inspection of drugs is an insufficiently reliable method that the Supreme Court has excluded it as a method of proof.

There are certain exceptions to this rule. For instance, marijuana is sufficiently unique in smell and look that North Carolina courts have routinely held that an officer may testify that what he observed was pot based on his experience and training.

Now the North Carolina Court of Appeals has established another exception. In State v. James (September 20, 2011), the Court of Appeals heard a case where a police arrested a person suspected of Felony Possession With Intent to Sell and/or Deliver Cocaine (PWISD) (Crack).

The police conducted a field test – Narcotics Field Test Kit (NIK Test) – of the substance which preliminary identified the sustance as cocaine base (crack).

In addition, the police officer visually identified the substance as crack cocaine.

However, before the state could test the material in an actual laboratory, the Defendant ate the crack cocaine.

The Court of Appeals held that, having eaten the crack cocaine, the Defendant forfeited his right to challenge the admission of the police officers’ testimony based on the Defendant’s own wrongdoing.

The lesson here: Don’t Eat Crack.

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