Common Questions About Drug Offenses In North Carolina

Common Questions About Drug Offenses In North Carolina


I live in a college community, so I see a lot of lower level drug offenses, like marijuana possession. Many students and other people are charged with simple possession offenses, where the person is accused of possessing a quantity of drugs most likely for personal use. While that is a common offense, I represent a lot of people charged with more serious drug crimes. Sometimes, that is because the drugs are for personal use, but the client is overcharged. Other times, the evidence supports a conclusion that there is a larger, or distribution, amount of drugs involved.

How Is A Drug Charge Determined To Be Either A Misdemeanor Or A Felony?

State and federal statutes define drug offenses and designate the offenses as misdemeanors or felonies. In federal courts, misdemeanor offenses carry punishments of up to a year. In general terms, felonies carry a greater potential punishment than misdemeanors. There are exceptions to that rule depending on the type of offense and the criminal record of the person accused.

In North Carolina, state court sentencing is different than federal court sentencing and most misdemeanors do not expose the individual to a sentence of a year in jail. The most prominent exception is that the maximum penalty for a misdemeanor driving while impaired charge in North Carolina is three years. Felony charges carry maximum sentences much longer than the person risks under normal circumstances. The exception is where the accused has a significant criminal record.

What Distinguishes Possession, Sale And Distribution Of Drugs In North Carolina?

Each offense is defined by statute. A person possesses drugs when he is in actual or constructive possession of the substance. An example of actual possession is when the person has the drugs in his hand or pocket. Constructive possession means that the person has the ability and the intent to control the drugs. Ability without the intent would not be constructive possession. Nor would the intent without the ability to possess the drugs.

In other words, the drugs may be in the trunk of someone else’s car, but if you have knowledge, access and the intent to possess the drugs, you would be in constructive possession.

Sale is the transfer of a drug for some form of payment. Distribution does not require payment; sharing drugs can be evidence of distribution.

The intent to distribute is often an issue in dispute. Evidence of intent to distribute may include the weight or number of units and the way the drugs are packaged. A small amount of drugs packaged in multiple bags may be evidence of intent to distribute. The decision to charge someone is based on a number of factors, including the amount, the way the drugs are packaged, and what the person was doing at the time they were charged.

Can Police Conduct A Warrantless Search If They Suspect The Presence Of Drugs?

There is no drug exception to the warrant requirement. Suspicion that a person possesses or deals drugs does not create an exception to the constitutional requirement to obtain a search warrant before searching. There are limited exceptions, however, to the requirement that investigators obtain a search warrant before conducting a search.

Those exceptions include the consent to the search by the person in control of the premises or property, exigent circumstances that justify entry into property to protect a person or avoid the destruction of evidence, and searches pursuant to a lawful arrest. If an officer finds drugs or paraphernalia in plain view during a lawful investigation, it may justify a search or support a warrant to conduct a search.

Can A Passenger Be Charged If Drugs Are Discovered In the Vehicle?

Certainly, a passenger may be charged if investigators find drugs in a car. In fact, that is common. At the same time, a charge does not mean that the officer has sufficient evidence to support the charge. Without more, mere presence as a passenger in an automobile where drugs are discovered is insufficient to support a conviction.

A passenger may not be off the hook, however, if other evidence connects the passenger to the drugs. If the drugs are under the passenger seat and the police officer sees the passenger fiddling with the bottom of the seat, this additional evidence supports an argument that the passenger was aware of the drugs and in constructive possession.

In general, the answer to the question is yes. The state or government will need more to sustain a conviction than evidence that a passenger in a car or guest in another person’s home was present when drugs are discovered.

Amos Tyndall is a criminal trial lawyer who represents people accused of serious crimes in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white-collar offenses, and first-degree murder. Amos has taught trial practice with the National Institute of Trial Advocacy and Gerry Spence’s Trial Lawyer’s College and been listed in ©The Best Lawyers in America since 2013. (t) (919) 967-0504; atyndall@ptwfirm.com.