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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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