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North Carolina Criminal Law 90-95: Drug Trafficking - Selling, Delivering, or Transporting

Marijuana, Methaqualone, Cocaine, Amphetamine, Methamphetamine, Opium, Heroin, or Lysergic Acid Diethylamide (LSD) 1. Definition and Elements of the Crime

Under North Carolina Criminal Law Chapter 90-95(h), the crime of drug trafficking involving the sale or delivery of a controlled substance under the Controlled Substance Act is defined as the unlawful possession of a stated/certain amount of a controlled substance listed under the Controlled Substances Act.

To prove a charge of drug trafficking by sale, delivery and/or transport, the State must be able to establish the following prima facie elements Beyond a Reasonable Doubt:

1. Selling or Delivering - The Defendant knowingly sold or delivered marijuana, Methaqualone, Cocaine, Amphetamine or any mixture containing amphetamine, Methamphetamine or any mixture containing methamphetamine, Opium, Heroin, MDMA, LSD, MDA, synthetic cannabinoid, and/or mephedrone. Growing, chemically compounding a controlled substance would be manufacture of named controlled substance

2. Transporting - The Defendant knowingly transported Marijuana, Methaqualone, Cocaine, Amphetamine or any mixture containing amphetamine, Methamphetamine or any mixture containing methamphetamine, Opium, Heroin, MDMA, LSD, MDA, synthetic cannabinoid, and/or mephedrone

3. Proscribed / Prohibited Amount - That the amount of the specific controlled substance which the defendant sold, delivered, and/or transported was at or above the statutorily defined amount.

For purposes of enforcement of the drug trafficking laws, “Marijuana” does not include industrial hemp.

For offenses occurring on or after September 1, 2009, the charge of trafficking in Amphetamine and Methamphetamine are based on the weight of the entire powder or liquid mixture rather than the weight of the actual amount of amphetamine in the powder or liquid mixture.

"Manufacture" is defined by N.C. Gen. Stat. § 90-87(15). It includes producing, preparing, propagating, compounding, converting or processing a controlled substance, either by extraction from substances of natural origin or by chemical synthesis. Also included are packaging or repackaging and labeling or relabeling of the container of a controlled substance.

Where the state seeks to establish the exact amount of the controlled substance involved, this exact amount may be inserted. Where the exact amount is at issue, the judge should instruct on the appropriate range of amounts under the statute. Care should be used in explaining the applicable range.

If the defendant contends he or she did not know the true identity of what transported, the following language is added to the first sentence: "and the defendant knew what the defendant transported was (name substance)."

The State is not required to prove that the defendant had knowledge of the weight or amount of the controlled substance the defendant knowingly transported, only that the defendant knowingly transported the controlled substance.

2. Examples of Drug Trafficking – Selling, Delivering, or Transporting

Defendant sells an undercover agent a powdery mixture weighing 29 grams, of which only 5.565 grams were cocaine. Defendant can be charged and convicted of trafficking in cocaine by delivering over 28 grams of cocaine because the entire weight of the mixture counts if any mixture contains a prohibited substance.

Defendant is caught selling 13.2 grams of white powder containing 30 percent pure heroin. Defendant can be charged with and convicted of trafficking in heroin because the weight of the entire mixture is 4 grams (amount needed to be charged with heroin trafficking).

The weight of the entire mixture, not the weight of the controlled substance in the mixture, determines liability and punishment under this statute.

3. Similar Offenses
  1. North Carolina Criminal Law Chapter 90-95: Possession of a Controlled Substance on Premises of a Penal Institution or Local Confinement Facility
  2. North Carolina Criminal Law 90-95: Trafficking in Marijuana
  3. North Carolina Criminal Law Chapter 90-95: Possession of a Controlled Substance With Intent to Manufacture, Sell or Deliver
  4. North Carolina Criminal Law Chapter 90-108: Feloniously Dispensing a Controlled Substance
  5. North Carolina Criminal Law 90-108: Possession of a Controlled Substance (Felony, Misdemeanor)
  6. North Carolina Criminal Law Chapter 90-95: Possession of an Immediate Precursor Chemical
4. Defenses to Trafficking a Controlled Substance by Sale, Delivery, or Transportation

Defendant can show that he or she did not know that he was transporting a controlled substance under the Controlled Substances Act.

Intent to sell or deliver is not an essential element of the offense. Lack of prior record is not a defense to Trafficking a Controlled Substance by Sale, Delivery, or Transportation.

Defendant can prove that the amount alleged to have trafficked is less than the requisite amount to be charged with a trafficking offense.

“Personal Use” is also not a defense to Trafficking charges in North Carolina.

5. Penalties

The crime of drug trafficking (selling, delivering and/or transporting) may be classified as a Class C Felony, Class D Felony, Class E Felony, Class F Felony, Class G Felony, or Class H Felony, depending on the type of controlled substance and/or weight amount being trafficked.

For specific penalties based on the weight or type of controlled substance, please see North Carolina Criminal Law Statute 90-95(h).

Sentencing differs from the traditional felony punishment charts and may mandate both an active prison term and substantial fine. Unlike the felony punishment grids for other felony offenses, a Prior Record Level or “PRL” is not considered.

As such, lack of a prior record or criminal conviction is not considered in sentencing for Trafficking a Controlled Substance in North Carolina.

6. Criminal Defense for Trafficking Controlled Substance Cases

If you have been charged with drug trafficking, you need to contact an experienced North Carolina criminal attorney who can advise you of your rights and guide you through the court process.

Trafficking charges differ substantially from other, more traditional forms of possession with intent to sell or deliver and/or the sale and delivery of a controlled substance.

Your prior record, or lack thereof, is not considered. As such, the Prior Record Level or “PRL” as normally calculated under the NC Sentencing Guidelines is not a factor in sentencing.

Indeed, both the minimum and maximum periods of prison time are set by:

  1. The type of controlled substance; and,
  2. The amount of the controlled substance.

That is also true for the mandatory penalties imposed under the NC Criminal Laws relative to trafficking charges.

For example, with regard to trafficking marijuana, the following penalties apply:

1. More than 10 pounds but less than 50 pounds, it is a Class H Felony. Sentencing is set as a minimum / maximum active prison term of 25 to 39 months. The fine must be at least $5,000. That differs from the traditional felony punishment grids, as an intermediate or community punishment is not authorized under the trafficking laws. Rather than supervised probation or some other alternative, an active prison term is mandated under the statute. That is a substantial departure from the traditional imposition of judgment for a Class H Felony.

2. 50 pounds but less than 2,000 pounds, it is a Class G Felony. Sentencing is set as a minimum / maximum active prison term of 35 to 51 months. The fine must be at least $25,000. That differs from the traditional felony punishment chart for a Class G Felony, which carries a 47-month maximum active prison term. Again, an active term in the North Carolina Department of Adult Corrections is mandated.

3. 2,000 or more but less than 10,000 pounds is a Class F Felony. Sentencing is set as a minimum / maximum active prison term of 70 to 93 months. The fine must be at least $50,000. That differs from the traditional felony punishment grid for a Class F Felony, which carries a 59-month maximum active prison term.

4. 10,000 pounds or more of marijuana, under the drug trafficking laws, is a Class D Felony. Sentencing is set as a minimum / maximum active prison term of 175 to 222 months. The fine must be at least $200,000. That differs from the traditional felony sentencing chart for a Class D Felony, which carries a 150 to 204-month maximum active prison term.

As such, the sentencing guidelines differ, at least in part, from the punishments as set forth in North Carolina Criminal Law 90-95. Trafficking charges mandate active prison terms.

Your Charlotte Criminal Defense Attorney can help explaining sentencing and your legal options with greater specificity.

The crime of drug trafficking also carries a strong negative social stigma. A conviction can make it difficult, if not impossible, to find employment. That’s in addition to the normal difficulties encountered as a convicted felon, which is bad enough.

More importantly, you are facing substantial periods of incarceration if convicted of this offense.

It’s imperative to begin your defense without delay. Please call 877-462-3841 immediately.

Call NOW to schedule your complementary legal consultation with our Charlotte Criminal Defense Lawyers.

Everything discussed during consultation with our law firm and lawyers is confidential. We charge nothing to answer background questions and provide general information about the criminal process in North Carolina.

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