Attorney Profile

As one of North Carolina’s preeminent criminal defense lawyers, widely respected as a federal trial practitioner, regarded by judges and prosecutors as “always prepared” and diligent, Damon Chetson has represented more than 1500 clients in more than a decade of litigation throughout courts in North Carolina. From large multi-defendant conspiracies, public corruption cases, drug trafficking conspiracies, to notorious cases involving the abduction and torture of a prosecutor’s father, Damon is aggressive in the defense of his clients at both the trial and appellate levels.

A graduate of the Ivy League University of Pennsylvania and then as a law school graduate of the University of North Carolina, Damon spent three years in between at the University of Virginia where he focused on post-war German history.  His Master’s Thesis was on the German Social Democratic Party in the after the fall of the Nazi regime.

Mr. Chetson next worked in public policy in Washington, DC and in Arizona, where one of his personal interests was the mass incarceration of individuals in the American criminal justice system.  As a law school clerk at the Wake County Public Defender’s office in 2007, he located the alibi that proved his client could not have committed an Armed Robbery on Tarboro Street.

In the past decade, he has represented people accused of both misdemeanors and felonies, and is familiar to judges on both the state and federal benches as a diligent and articulate defender of his client’s interests.

 

Can I win a federal drug trafficking case?

Federal Drug TraffickingThe United States Attorney for the Middle District of North Carolina announced nearly two dozen arrests in a federal drug trafficking ring at UNC, Duke, and Appalachian State this month in conduct he is calling “astonishing.”  The arrests triggered initial appearances in federal court in Greensboro this month, and additional arrests may follow as prosecutors and law enforcement allege that the trafficking was done by “hardened drug dealers.”

Authorities have claimed that some of the defendants are students or former students at each of the three universities and that the conduct occurred in the at least the Eastern District of North Carolina (including Raleigh) and the Western District of North Carolina (including Charlotte).  The initial indictment alleges conduct that, if proven at trial, would result – absent other kinds of relief – a 10 year mandatory minimum (up to life) in the federal Bureau of Prisons.

It’s important to recognize that at this point the indictment, complaint, and press conference statements by the United States Attorney and law enforcement are simply accusations: nothing has been proved yet, and there is a long way to go before this case is resolved in court.  The case will stretch into at least late 2021, if not later for people who decide to go to trial.

Initial Appearance: Federal Trafficking Case

Each of the defendants, if they have not already been arrested, will be detained and taken before a United States Magistrate Judge in the Middle District.  The Initial Appearance is the time for the prosecutor to inform a defendant of the charges he or she faces, and the potential penalties.  Given the quantities of drugs discussed at the press conference held this week, the defendants, in this case, are likely to face 10 years to life in prison, along with substantial possible fines, forfeiture of drugs and proceeds, and other collateral consequences.

The magistrate judge will next inform the defendant of various rights: the right to remain silent, the right to counsel at every important stage in the proceeding, the right to a jury trial.  In the Middle District, a defendant is often arraigned at the initial appearance, and almost always enter a plea of “Not Guilty.”  For defendants who have not yet had the chance to hire a lawyer, a representative “attorney of the day” or “duty attorney” from the Office of the Federal Public Defender is present to provide some general guidance about how to respond to the court’s queries.

The final step in the Initial Appearance is a determination of release status.  The Government has the power to require a defendant to remain in custody, and in any case involving a drug trafficking crime – such as those alleged here – where the possible punishment is 10 years or greater, the Government enjoys a “rebuttable presumption” that the defendant should be detained.  (See 18 U.S.C. Sec. 3142(f)(1)(C))

If a defendant is detained, the Magistrate Judge will schedule a detention hearing to be held usually within a week of the initial appearance, unless a delay is sought by the defendant to prepare.

Detention Hearings in Federal Court

A detention hearing is an opportunity for the defendant, through his or her attorney, to argue that he or she should be released pending resolution of the case.  Release is almost always preferable because it affords the client an opportunity to work with his lawyer to assist in the defense, home is much more preferable than a local jail where federal detainees are kept, and, to the extent that the client may plead guilty, the ability to establish to the court that the client is now leading a law-abiding life.

In cases where a rebuttable presumption exists, the defendant can often rebut that presumption by offering a “third-party custodian” (a friend, spouse, or parent) who promises to ensure that the defendant abides by the court’s conditions, and reports to court as required on future court dates.

If released, the defendant will often be appointed a probation officer who can check in periodically.  Other conditions may apply, including electronic monitoring, substance abuse treatment requirements, and the requirement that the client remain employed or in school.

If detained, the person will be held in the custody of the United States Marshal Service in one of the local jails in North Carolina or Virginia where the federal government rents space for its federal detainees.

An Arraignment in Federal Cases

While a person is often arraigned at an Initial Appearance in the Middle District, and almost always pleads “Not Guilty,” in cases where the defendant decides to plead guilty, a Change of Arraignment Hearing will be held at which the defendant will move to change his or her entry of arraignment and now plead guilty, either pursuant to a plea agreement (if one has been negotiated) or to the indictment.

In cases where the client maintains his or her innocence or believes that a guilty plea is not in his or her best interests, the case will proceed to trial.  The Speedy Trial Act requires the case to come to trial – excluding certain delays – within 75 days of arraignment.  A federal trial, therefore, may happen in the cases charged this month by March, although in nearly all federal cases, the defendant’s lawyer will seek a continuance in order to review discovery and prepare, especially if the evidence collected by the Government is particularly voluminous.

Federal Jury Trials

A federal trial is almost always a jury trial – although the defendant can request a bench (judge) trial – with 12 jurors selected from the Middle District of North Carolina.  Any defendant going to trial in a case involving mandatory minimum drug trafficking counts faces the risk of being found guilty in which case the judge would be precluded from sentencing the person to a prison sentence below the mandatory minimum.

As a result, the decision to go to trial should be carefully considered.

In advance of trial, the defense lawyer may conclude that certain evidence was obtained illegally – that is, in violation of the defendant’s Fourth Amendment or Miranda rights.  If the defense lawyer – after consultation with his client – concludes that evidence was illegally obtained, the defense lawyer would file a Motion to Suppress, and a judge – either Magistrate or Federal District Judge – would determine whether the evidence ought to be suppressed.  If a magistrate judge issues the ruling, the defendant has a right to appeal an adverse ruling for reconsideration by the federal district judge assigned to the case.

The trial itself would be preceded by various motions in limine that do not deal with suppression issues, and would begin with jury selection, opening statements, presentation of evidence by the Government (with cross-examination by the defense lawyer), presentation of defense evidence (including possible testimony by the defendant if he or she chooses), and closing statements by the lawyers.  The jury would then be instructed on the law by the presiding judge, and would retire to deliberate.  If a verdict is reached, the clerk or court announces the verdict; if jurors are unable to unanimously decide the case, the case would end in a mistrial, the Government could choose to retry the case.

If the defendant is found not guilty, the case ends.

If the defendant is found guilty, the case then proceeds to sentencing.

Federal Sentencing and the Sentencing Guidelines

Department of Justice statistics indicate that more than 95 percent of all federal cases in the United States result in a guilty plea. Federal criminal practice is largely a sentencing practice, and the best federal criminal lawyers are good trial lawyers and good sentencing lawyers.

Particularly in drug conspiracies, where federal law imposes incredibly harsh penalties, suspects often start cooperating and providing information at a very early stage.  As a consequence, most federal drug trafficking cases include not just wiretaps, bank transaction information, GPS data, video of drug transactions, but also debriefs of co-conspirators who, out of an instinct for self-preservation, tell what they know.

It is always better to have an attorney present during any interview.  The most important thing a defendant can do in a federal case is remain silent until he or she has an attorney in place.  Information revealed by the defendant in response to questioning by agents is often “unprotected” and can be used against the defendant to enhance his or her responsibility.

Where a client has no significant prior criminal history, did not possess a firearm in the conspiracy, and is not a leader or manager of the conspiracy, the client may be eligible for a 18 U.S.C. Sec. 3553(f) “Safety Valve” reduction which allows the person to be sentenced under the mandatory minimum.

Where a client – with an attorney’s assistance – provides useful information to the prosecutors or law enforcement, the prosecutors may decide to file a 5K1.1 substantial assistance motion that permits the sentencing judge to depart below the guidelines and the mandatory minimum in sentencing a defendant.

Federal Criminal Penalties

Federal drug trafficking cases are harsh.  Probation is not available where a defendant pleads guilty to a “knowingly, intentionally, and unlawfully distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine hydrochloride, a Schedule II controlled substance within the meaning of Title 2°I, United States Code, Section 812, in violation of Title 21, United States Code, Section 841(a)(l).”

Furthermore, federal conspiracy law is expansive: a person who was merely the courier, or the person who collected money, or the person who handled out cocaine to friends is theoretically part of the drug conspiracy.

Trump is a Menace, Praises Duterte for Drug War

Regardless of one’s politics, it is incontrovertible that Donald Trump is a menace, a seven-year-old with a gnat’s attention span dressed up as the President of the United States. He is singularly unfit to be president. A clown of epic proportions, he is a clear and present danger to our constitutional system.

(I’ll note that I bet that Trump would win as early as April 2016. I’ve also bet that he won’t last a year in office; here’s hoping.)

Amid all of the Trump-coverage, you may have missed news of Trump’s praise for Philippines President Rodrigo Duterte, a fascist who has admitted personally shooting and killing three men while mayor of Davao City, the post he held before being elected president last year.

In his first year of the presidency, press reports attribute some 4,200 killings to Duterte’s war on drugs.

Admittedly, there is a brutal efficiency to such a system’s disregard for basic human rights. In the United States, we lock people away for decades in cages for purely non-violent drug crimes.

But it is gruesome, and whatever the United States’ faults, we at least generally afford people due process before punishment.

Trump Praises Duterte

Here comes our clown-fascist-child president to praise Duterte:

You are doing an amazing job.
Reporters should ask at every. possible. instance. whether the President of the United States believes that killing suspected drug dealers is a piece of that “amazing job.”

Can I be convicted of drug trafficking?

A drug trafficking offense is defined differently under state and federal law. In North Carolina, a drug trafficking offense is defined by the weight of the drugs, or the number of dosage units. Not all controlled substances have trafficking statutes. But for ones that do, the quantity determines the level of trafficking.

In the case of heroin or opiate trafficking, the state merely has to show possession of 4 grams (or mixture of heroin or opiate with some other ingredient resulting in four grams). That quantity of opiates qualifies someone for trafficking under North Carolina’s drug laws, with punishments ranging from 70 months on up.

Different drugs have different punishment ranges under North Carolina’s trafficking laws, with those punishment ranges determined by the weight or quantity of the drug in question. A Wake County District Attorney need not show that the drug was sold, distributed, or exchanged in order to prove a state drug trafficking case.

Federal law operates differently. Anything other than mere possession of a controlled substance is considered trafficking. Whether a drug crime is a trafficking crime also can affect sentencing, insofar as if a weapon, for instance, is used, carried, or possessed in furtherance of the drug trafficking crime, the United States government can additionally prosecute the person for what’s called a 18 USC 924(c) offense.

Under federal law, the quantity of drugs is irrelevant to whether the offense is a drug trafficking offense. Amounts as small as .1 gram can be considered as part of a drug trafficking crime if those amounts were sold or distributed or exchanged.

The quantity of drugs does impact sentencing when it comes to the sentencing guidelines, and in that respect the government can use not just the quantities exchanged during the convicted offense, but also all quantities of drugs historically distributed through what is called “relevant conduct.”

Because of its expansive definition of relevant conduct, federal drug crimes can be punished very severely, and often only after a showing of quantities through a sentencing hearing where the standard is preponderance of evidence, not beyond a reasonable doubt.

Heroin Punished Harshly in North Carolina

Raleigh Heroin LawyerHeroin is the most harshly punished drug in North Carolina’s sentencing scheme. Possession of 4 grams of heroin will result, upon conviction, of at least 70 months in prison, assuming no substantial assistance is provided to police to help mitigate the sentence.

Heroin was originally synthesized in 1874 by an English chemist working in London. Heroin, in fact, was the trade name that Bayer had given to diacetylmorphine, and it was originally advertised as a non-addictive morphine substitute and cough suppressant. However, it was soon discovered that Heroin metabolizes into morphine, and so was in fact a quicker acting and more addictive form of morphine.

In 1924, the United States banned the sale, importation, and manufacture of diacetylmorphine or Heroin. The following year, the League of Nations attempted to ban the drug worldwide. In 1919, Bayer lost many of its trademark rights to the name Heroin. Today, Heroin is no longer regarded as the unique trademarked name, but rather is the generic name.

Heroin can be ingested (swallowed), injected (via a needle, also known as slamming, banging, or mainlining), smoked (also known as “chasing the dragon”), insufflation (snorting), or used as a suppository (“plugging”).

In the United States, heroin is a schedule I drug according to the Controlled Substances Act and a schedule I drug according to North Carolina’s Chapter 90 schedules, meaning that heroin may not be possessed except Drug Enforcement Agency license.

Afghanistan is the largest producer of Heroin, and since 2004 has produced between 90 and 90 percent of all heroin worldwide.

Raleigh Possession Lawyer

Recent changes in North Carolina drug laws make hiring a Raleigh possession lawyer important when dealing with a PWISD, simple possession charge, or trafficking charge.

For first time offenders, a person charged with certain kinds of misdemeanor or felony possession charges may be eligible for drug diversion programs where, at the conclusion of the program, they are eligible for the complete dismissal of all drug crimes if they complete all the terms of the program.

It is important to hire an effective Raleigh drug lawyer as early as possible in the case, so as not to expose yourself or your child to additional charges, and to attempt to convoke a Wake County Assistant District Attorney to offer you a program that can result ultimately in a clean record.

If you or a loved one has been charged with drug trafficking, it is especially important to hire an effective Raleigh drug lawyer. Drug trafficking statutes have mandatory minimum sentences. If not handled properly, and if convicted of the offense, a defendant will be sentenced to at least 25 months (for certain drugs, such as marijuana) and at least 70 months (for opiates, including hydrocodone, oxycontin, and heroin).

If convicted of North Carolina drug trafficking crime, a defendant cannot receive any reduction in the sentence below the mandatory minimum unless the person provides “substantial assistance.”

It is important that you have an attorney who understands how to properly offer substantial assistant, and how to work with law enforcement to make your substantial assistance as effective as possible.

In addition, it is important that you have an attorney who is willing to go to trial, if that’s what you choose to do.

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.

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.

Crack Sentencing in the Federal System

One of the glaring problems with federal drug sentencing laws was the very heavy sentencing applied to people accused of having rock or crack cocaine, as opposed to powder cocaine. The myth that emerged in the 1980s was that crack cocaine was somehow more dangerous than powder cocaine.

As a result of the hysteria in the 1980s over crack violence and crack babies and the crack epidemic, Congress decided to punish the possession, sale, or trafficking in crack cocaine much more harshly that the possession, sale, or distribution of powder cocaine.

Now some sanity has been restored to federal drug sentencing guidelines – although they remain very punitive and much too harsh for a civilized society.

Since crack cocaine has plagued the African-American community more than other communities, African-Americans were punished much more harshly than people of other backgrounds. This racial disparity was certainly in the minds of the Federal Sentencing Guidelines commission which, following the Fair Sentencing Act of 2010, has now approved procedures which will reduce the sentences of more than 12,000 Americans who have been punished unduly harshly for possession of crack cocaine.

According to the Los Angeles Times:

About 12,000 federal prisoners nationwide may soon be going home, some as much as three years early, under a U.S. Sentencing Commission decision to allow retroactive reductions in prison terms for inmates convicted of crack cocaine offenses. The commission voted unanimously Thursday to bring “unfairly long sentences” for crack offenders, mostly African Americans, more in line with the shorter terms given to powder cocaine offenders, often white and sometimes affluent.

The Wire: Drug Trafficking Charge for Felicia Pearson

One of my favorite characters from the HBO show The Wire was Snoop, the enforcer for Marlo’s drug organization. Now it’s turned out that Snoop was picked up in a drug raid in Baltimore and is now being charged with trafficking in heroin:

Felicia Pearson, an ex-con who played a drug gangster named Snoop on the HBO television drama “The Wire,” was one of dozens arrested in a real-life heroin trafficking bust announced on Thursday in Baltimore.

Pearson, charged with conspiracy to distribute heroin, was one of 38 people arrested in the sweep and one of 64 defendants named in related state and federal indictments.

The raids by federal agents and Baltimore police “dismantled an entire drug trafficking organization,” Ava Cooper-Davis, a special agent of the Drug Enforcement Administration, said in a statement. “We got the top, we got the bottom and we got everybody in between.”

Here’s a video I recently made incorporating a scene from The Wire into a lesson about why not to talk to police.

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