The sale or delivery of a controlled substance is a felony offense in North Carolina. A person who sells or delivers a controlled substance can receive a punishment of months or even years in prison. If you have been charged with the sale or delivery of a controlled substance, an experienced defense lawyer can examine your case and potentially negotiate to reduce your charges. Contact Mr. Rosensteel so that he can help determine the best course of action for you.
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Possession with Intent to Sell or Deliver
North Carolina statute makes it a crime to sell or deliver or to possess with the intent to sell or deliver any controlled substance. The term “deliver” is defined by statute to mean “the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”
The severity of the punishment for selling or delivering a controlled substance is based on what type of controlled substance is sold or delivered. A person who sells a controlled substance classified in Schedule I or II is punished as a Class G felon. Schedules I and II include controlled substances such as LSD, mescaline, heroin, MDPV, cocaine, codeine, and oxycodone. North Carolina law provides that a person who commits a Class G felony must receive a sentence between 8 and 31 months, depending on the person’s prior convictions. A person with no prior convictions may receive intermediate punishment, but the court is permitted to sentence any person convicted of a Class G felony to active jail time.
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. 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.
Because intent goes to a person’s mental state, there is rarely direct evidence that a person acted with the requisite intent to sell or deliver a controlled substance. Intent is often proven by circumstantial evidence, meaning that the person’s intent is inferred from the surrounding facts and circumstances. Such surrounding facts and circumstances might include also possessing items typically used to sell or deliver controlled substances, such as baggies, containers, scales or large amounts of cash.
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A person who delivers or possesses with the intent to sell or deliver a controlled substance classified in Schedule I or II is punished as a Class H felon. North Carolina law provides that a person who commits a Class H felony must receive a sentence between 4 and 25 months, depending on the person’s prior convictions. A person with no prior convictions may receive community or intermediate punishment, but the court is permitted to sentence any person convicted of a Class H felony to active jail time.
A person who sells a controlled substance classified in Schedule III, IV or V is also punished as a Class H felon. Schedules III, IV, V, and VI include controlled substances such as Vicodin, Tylenol with codeine, Xanax, Valium, Robitussin A-C, Lyrica and marijuana. A person who delivers or possesses with the intent to sell or deliver a controlled substance classified in Schedule III, IV or V is punished as a Class I felon. 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.
Sale or Delivery to Minor or Pregnant Female
If a person at least 18 years old sells or delivers a controlled substance to either (1) a person under the age of 16 years old but more than 13 years old or (2) a pregnant female, that person is punished as a Class D felon. A Class D felony is punishable by a sentence ranging from 38 to 160 months, depending on prior convictions. Anyone who has committed a Class D felony must be sentenced to active jail time.
If a person at least 18 years old sells or delivers a controlled substance to a person who is 13 years old or younger, that person is punished as a Class C felon. A person who commits a Class C felony must be sentenced to punishment between 44 and 182 months, depending on prior convictions, and this punishment must be active jail time. A person prosecuted of selling or delivering a controlled substance to a minor or pregnant female cannot claim mistake of age or lack of knowledge that the recipient was pregnant as a defense.
Sale or Delivery Within 1,000 Feet of a Child Care Center, School or Public Park
A person who is 21 years old or older is punished as a Class E felon if he sells or delivers a controlled substance within 1,000 feet of the boundary of a property used for any of the following:
a child care center
an elementary school or a secondary school
a public park
A Class E felony is punishable by a sentence ranging from 15 to 63 months, depending on prior convictions. A person with no prior convictions may receive intermediate punishment, but any person convicted of a Class E felony may receive active jail time.
For purposes of this aggravating factor, the transfer of less than five grams of marijuana for which no remuneration is received does not constitute a delivery.
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If a person argues that his conduct falls under an exception to the manufacturing of a controlled substance, it is his burden to prove that his conduct was authorized.
If you have been charged with the sale or delivery of a controlled substance, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.
