NC Drug Laws Explained

North Carolina’s Drug crimes are harsh, and defense of these crimes requires a Raleigh, Apex, or Cary criminal lawyer familiar not only with the law, but with how the Wake County District Attorney Colon Willoughby and his staff enforce the law. The Wake County District Attorney has various office “policies” which govern how the various assistant district attorneys – the men and women who actually prosecute cases – can handle cases. Those policies change from time to time, but basically they govern whether the Raleigh prosecutor in your case has any discretion in how to handle your case.

North Carolina’s drug crimes are all statutory crimes in Chapter 90, Article 5, of the North Carolina General Statutes. North Carolina’s drug crimes can either be misdemeanors or felonies. Simple possession of less than a half ounce of marijuana is a class 3 misdemeanor, which is the least serious level crime in North Carolina.

Trafficking in 28 grams or more of heroin, which requires proof that the person “knowingly”, “sold, manufactured, delivered, transported, or possessed OR conspired to sell manufacture, deliver transport or possess” opium, including heroin, and the quantity is 28 grams or more, the defendant is eligible for a Class C felony with a mandatory minimum sentence of 225 months in prison. That’s nearly 19 years in prison for about 1 pound of heroin.

Given the stiff penalties for trafficking – and trafficking doesn’t mean you have to be flying around in a Colombian – and the fact that those penalties have mandatory minimums, it’s easy to see how defendants can really get astronomical sentences for drug charges in Wake County, North Carolina.

In fact, these penalties are shocking to many people who come from New York. As I understand it, New York City prosecutors can give defendants 30 or 60 days of jail time for charges that in North Carolina will mean years and years in prison. Simply saying, “But in New York they do it differently,” won’t help. You’re in North Carolina, where the drug laws are very strict.

The more common drug charges in North Carolina relate to obtaining prescription medication through forgery or fraud. That crime can be charged as a misdemeanor, or, if the prosecutor can prove “intent,” as a felony. Frequently the defendant will take a misdemeanor plea to such charges, because the Wake County prosecutor will otherwise say she will prosecute the crime as a felony. And since “intent” is not difficult to show in many cases, the defendant may lose at trial and be convicted of the Class I felony.

Another common drug charge is possession with intent to sell or deliver. In order to convict on this crime, the Wake County District Attorney must prove that the defendant possessed the controlled substance and intended to sell, manufacture, or deliver it. The prosecutor doesn’t have to prove that the person ever sold anything. Just that the person intended to sell, manufacture or deliver it.

“Intent” can be proven by showing that amount was too much for one person’s personal use, or that it was packaged in several baggies. Simply finding 10 rocks of crack cocaine was not enough to find intent to sell or deliver. However, having 10 rocks in 10 separate baggies may be enough to convict.

I’ve seen many cases where the person had recently bought a few baggies of drugs, maybe some pot or crack, and where the police stopped him immediately after, and found a few baggies of pot on him, and charged HIM with possession with intent to sell or deliver (PWISD). Those cases can be defended, so it’s not hopeless. But it’s important to remember that the more baggies the drugs are in, the more likely the police will accuse the defendant of PWISD and not a simple possession charge.

Finally, the most bizarre crime in North Carolina is the possession of counterfeit controlled substance with intent to sell or deliver. Here’s what happens. A snitch, CI, or “confidential informant” working for the Raleigh Police Department (RPD) or the Wake County Sheriff’s Office (WCSO) or some other police agency goes up to some guy on the street and asks him for a couple of rocks. The guy (who becomes my client!) has nothing on him, but he wants to make a quick $50. So he tells the person that he’ll go “around the corner” to his stash to get some. He goes around the corner, picks up a few white/yellowish tiny stones, and comes back. The snitch (CI) gives him $50 in exchange for the “rocks” which are literally stones picked up off the ground, not drugs at all.

RPD swoops in, arresting the guy for either “sale or delivery of a counterfeit controlled substance” or “possession with intent to sell or deliver a counterfeit substance.” Obviously this is a nonsense crime. This is a crime where one guy has perhaps, at most, cheated the other guy out of $50 in exchange for some pebbles. Maybe it’s a kind of fraud. But it is not a drug crime.

But in Wake County, North Carolina, it may be charged as at least a Class I felony.