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.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.