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North Carolina Criminal Law 90-108: Possession of a Controlled Substance (Felony, Misdemeanor)

1. Definition and Elements of the Crime

Possession of a Controlled Substance The crime of Possession of a Controlled Substance under North Carolina Criminal Law 90-95(a)(3)(d) is a misdemeanor or felony offense (depending on the Schedule Level of the controlled substance) characterized by the possession of a controlled substance(s) listed in the North Carolina Controlled Substances Act.

To prove a defendant committed the crime of Possession of a Controlled Substance, the prosecutor must establish the following prima facie elements of the crime Beyond a Reasonable Doubt:

  • Knowingly
  • Possesses
  • A controlled substance

“Knowingly” means that the Defendant knew in fact what the Defendant was doing was possessing a controlled substance and what the defendant was possessing was a controlled substance

“Possession” may be actual or constructive. Actual possession means the controlled substance is found on the person of the Defendant. Constructive possession is shown by proof that defendant aware of its presence or has either by himself or herself or together with others both the power and intent to control the disposition or use of that substance. If a controlled substance is found on the premises of the defendant under his or her control, an inference can be made that the defendant knowingly possessed a controlled substance.

2. Examples of Possession of a Controlled Substance

Cocaine was found in the bottom and back seat pads in the rear seat of a vehicle where the defendant was sitting. Defendant may be charged with felony possession of a controlled substance, a Class I felony.

Defendant owns a home in which heroin was found in his or her bedroom. Defendant was not home at the time. Defendant can be charged with felony possession of a controlled substance, a Class I felony if Defendant exercises dominion or control over the premises in which the controlled substance is found.

Controlled substances are found in a shed that is 20 yards from Defendant’s premises. Defendant frequently goes back and forth from the shed and is seen near the shed often. Defendant can be charged with possession of a controlled substance, a misdemeanor or felony depending upon the type of controlled substance and/or its weight.

3. Defenses to Possession of a Controlled Substance

A defendant can challenge the crime of possession by proving that he or she lacked the requisite knowledge necessary for that element of the offense. For example, the defendant can argue that he or she lacked knowledge of the true identity of what the defendant possessed. The Defendant may also challenge whether they had actual or constructive possession of the controlled substance.

Additionally, the Defendant can argue that he or she was lawfully executing the duties of a law enforcement officer. For example, if the Defendant was a law enforcement officer acting as (or Defendant reasonably believed that he or she was acting as) an agent of a law enforcement agency enforcing the controlled substances act or the Defendant believed or reasonably believed that he or she was possessing a controlled substance in the official scope of his or her duties of enforcing the Controlled Substances Act, then the Defendant cannot be charged with the crime of possession.

4. Penalties

Under North Carolina Criminal Law 90-95(a)(3)(d): Possession of a Controlled Substance is a misdemeanor or felony. The possession of a Schedule I substance is a Class I felony which carries a potential maximum period of incarceration up to 3 to 12 months. For possession of a schedule II, III, or IV substance where the amount possessed is (1) more than 100 tablets, capsules, or dosage units; (2) more than four tablets, capsules, or dosage units of dilaudid; or (3) any amount of cocaine or phencyclidine, amphetamine, or methamphetamine, the crime is a Class I felony.

For a Schedule V substance the crime is a Class 2 misdemeanor which carries a maximum period of incarceration up to 60 days.

For a Schedule VI substance, the crime is a Class 3 misdemeanor (no active jail time required) if a person possesses up to one-half ounce of marijuana. Possession of ½ ounces to 1 and ½ ounces of marijuana is a Class I misdemeanor which carries a potential maximum period of incarceration of up to 120 days.

It is important to know that any offense punishable as a Class I misdemeanor under the North Carolina Controlled Substances Act is elevated to a Class I felony if the Defendant has any prior misdemeanor or felony convictions under the North Carolina Controlled Substances Act.

5. Criminal Defense for Drug Possession Cases

Drug Possession Cases, Police dog If you have been charged or arrested for Possession of a Controlled Substance, contact a defense attorney without delay. Drug possession charges carry severe consequences and can have a lon- lasting impact on your employment and financial prospects.

Our criminal defense attorneys will provide you with advice on how to challenge the elements of possession and guide you through the process.

CALL NOW: 704-342-4357

The Powers Law Firm PA provides free, confidential consultations for criminal charges. Our criminal lawyers provide help to people in Charlotte-Mecklenburg as well as Gaston County, Iredell County, Rowan County, and Stanly County, North Carolina. You may email Bill Powers at: Bill@CarolinaAttorneys.com

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