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Charlotte NC Attorneys at Law
Rosensteel Fleishman

Possession of a Controlled Substance

Possession of a controlled substance is a serious crime in North Carolina and can be punished on the felony level, depending on the type and amount of controlled substance. An experienced defense attorney will be able to determine how the law applies to the facts of your case and help choose the best course of action for you. The sooner you call Mr. Rosensteel, the sooner he can begin examining your case.

In North Carolina, it is a crime for a person to knowingly possess any amount of a controlled substance without a prescription. The punishment for a person who violates this law is based on what type of controlled substance the person possesses and the amount of controlled substance possessed. North Carolina statute separates the controlled substances into six schedules.

Those listed in Schedule I are controlled substances with “a high potential for abuse, no currently accepted medical use in the United States, or a lack of accepted safety for use in treatment under medical supervision.” Schedule I controlled substances include LSD, mescaline, heroin, and MDPV.

Those listed in Schedule II are controlled substances with “a high potential for abuse; currently accepted medical use in the United States, or currently accepted medical use with severe restrictions; and the abuse of the substance may lead to severe psychic or physical dependence.” Schedule II controlled substances include cocaine, codeine, methamphetamine, and oxycodone.

Those listed in Schedule III are controlled substances with “a potential for abuse less than the substances listed in Schedules I and II; currently accepted medical use in the United States; and abuse may lead to moderate or low physical dependence or high psychological dependence.” Schedule III controlled substances include Vicodin and Tylenol with codeine.

Those listed in Schedules IV and V are controlled substances with “a low potential for abuse relative to the substances listed in Schedule III of this Article; currently accepted medical use in the United States; and limited physical or pyschological dependence relative to the substances listed in Schedule III of this Article.” Schedule IV controlled substances include Xanax and Valium. Schedule V controlled substances include Robitussin A-C and Lyrica.

Those listed in Schedule VI are controlled substances with “no currently accepted medical use in the United States, or a relatively low potential for abuse in terms of risk to public health and potential to produce psychic or physiological dependence liability based upon present medical knowledge, or a need for further and continuing study to develop scientific evidence of its pharmacological effects.” Schedule VI controlled substances include marijuana.

A person who possesses a Schedule I controlled substance is punished as a Class I felon, unless the controlled substance is MDPV and the amount possessed is 1 gram or less, in which case the crime is punished as a Class 1 misdemeanor. North Carolina law provides that a person who commits a Class I felony must receive a sentence between 3 and 12 months, depending on the person’s prior convictions. A person with no prior convictions must receive a community punishment, but the court is permitted to sentence a person with prior convictions to active jail time. A person who commits a Class 1 misdemeanor receives a sentence between 1 day and 120 days, depending on their prior convictions. A person with no prior convictions cannot receive more than a 45-day sentence, and this sentence must be community punishment. However, it is possible for a person with one or more prior convictions to receive active jail time as a punishment.

A person who possesses a Schedule II, III, or IV controlled substance is guilty of a Class 1 misdemeanor, unless the amount possessed “exceeds four tablets, capsules, or other dosage units or equivalent quantity of hydromorphone or if the quantity of the controlled substance, or combination of the controlled substances, exceeds one hundred tablets, capsules or other dosage units, or equivalent quantity,” in which case the crime is punished as a Class I felony. In addition, if “the controlled substance is methamphetamine, amphetamine, phencyclidine, or cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof,” the crime is punishable as a Class I felony.

A person who possesses a Schedule V controlled substance is guilty of a Class 2 misdemeanor. The punishment for a Class 2 misdemeanor ranges from 1-60 days, depending on prior convictions. A person with no prior convictions can be sentenced to up to 30 days, but this punishment must be community punishment.

A person who possesses a Schedule VI controlled substance is guilty of a Class 3 misdemeanor, unless the amount of the controlled substance is more than ½ ounce of marijuana, in which case the crime is punished as a Class 1 misdemeanor, or more than 1 ½ ounce of marijuana, in which case the crime is punished as a Class I felony. Punishment for a Class 3 misdemeanor ranges from 1-20 days, depending on whether the person has any prior convictions. A person with no prior convictions must receive community punishment, but a person with prior convictions can receive active jail time as punishment. However, the controlled substance possession statute provides that if the crime is punished as a Class 3 misdemeanor, the sentence of imprisonment must be suspended.

 

Knowledge and Intent

The possession of a controlled substance statute does not require that a violator act with any specific intent. All that is required is proof of the person’s general intent, as well as the requisite knowledge. Typically, a person is presumed to intend the natural consequences of his actions, so that the possession of the controlled substance is sufficient to support a violation of the statute.

However, the person must also possess the controlled substance “knowingly.” Because knowledge goes to a person’s mental state, it is usually very difficult to prove through direct evidence. Usually, knowledge must be inferred from the surrounding circumstances. Surrounding circumstances can include the conduct and statements of the defendant as well as others.

 

Possession

A person possesses a controlled substance when he has the power and intent to control its disposition or use. Possession can be either actual or constructive. A person has actual possession of a controlled substance when he has the controlled substance on his person, he is aware of the presence of the controlled substance and he has the power and intent to control its disposition or use.

A person can have constructive possession of a controlled substance that is not on his person, but of which presence he is aware and has the power and intent to control its disposition or use. If a person has exclusive possession of the place where the controlled substance is found, this is typically sufficient to establish constructive possession of the controlled substance. For example, if a controlled substance is found in a person’s house and the person is the only one who lives in the house, this can be sufficient to establish that the person constructively possessed the controlled substance.

However, a person can also have constructive possession of a controlled substance even if he does not have exclusive possession of the place where the controlled substance is found. If the person does not have exclusive possession of the place in which the controlled substance is found, other incriminating circumstances are necessary to show constructive possession. Some such incriminating circumstances are:

  • The proximity of the person to the controlled substance.
  • Whether the person owned, occupied or had control of the location in which the controlled substance was found.
  • Whether the person had the opportunity to place the controlled substance in the location where it was found.
  • Whether there were personal items of the person found at the location where the controlled substance was located.
  • Whether the person engaged in suspicious behavior (such as fleeing).
  • Whether the person engaged in drug activity (such as being impaired by drugs).

 

Identification of Controlled Substance

Usually, “expert testimony based on a scientifically valid chemical analysis generally is required to identify a controlled substance beyond a reasonable doubt” and controlled substances cannot be proven through visual identification alone. However, the North Carolina Supreme Court has held that a defense witness’s identification of a substance as “cocaine” was sufficient to identify that controlled substance. In addition, where a pharmacist identified a controlled substance taken from the pharmacy based on his inventory, this testimony was sufficient to establish the identity and quantity of the controlled substance. Finally, the ability to establish the identity of the controlled substance by lay testimony might be based on the type of controlled substance (i.e. marijuana identified by the lay testimony of an experienced officer is okay).

If you have been charged with possession of a controlled substance, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.