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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:
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.
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:
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.
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.
- Not more than 200 milligrams of codeine or any of its salts per 100 milliliters or per 100 grams.
- Not more than 100 milligrams of dihydrocodeine or any of its salts per 100 milliliters or per 100 grams.
- Not more than 100 milligrams of ethylmorphine or any of its salts per 100 milliliters or per 100 grams.
- Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit.
- Not more than 100 milligrams of opium per 100 milliliters or per 100 grams.
- Not more than 0.5 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
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.
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.
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.
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.
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.
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.
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