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North Carolina Criminal Law Chapter 90-95: Possession of a Controlled Substance With Intent to Manufacture, Sell or Deliver

Lesser Included Offense (Felony; Misdemeanor)

The crime of Possession of a Controlled Substance with the Intent to Manufacture, Sell or Deliver under North Carolina Law 90-95(a)(1),(3),(b),(d) is a misdemeanor or felony offense (depending on the Schedule Level) characterized by a possession of a controlled substance listed in the North Carolina Controlled Substances Act with the intent to manufacture, sell or deliver it to another person.

To prove a defendant committed the crime of selling or providing narcotics, a prosecutor must establish the following prima facie elements of the crime beyond a reasonable doubt:

  • A person Knowingly
  • Possesses
  • A Controlled Substance
  • With the Intent to
  • Manufacture, Sell or Deliver It
1. Element Definitions

“Knowingly” means that the Defendant knew he was manufacturing, possessing, selling, transporting, etc. a controlled substance and what the defendant was manufacturing, possessing, controlling, transporting, etc. was in fact 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.

“Sell” means to transfer for compensation in the form of cash (i.e., monetary items) and/or non-monetary items (e.g., clothing, food, etc.). “Deliver” means transferor attempts to transfer narcotics to another person.

“Manufacturing” includes any method, direct or indirect, of producing, propagating, compounding, converting, or processing. Manufacture also includes packaging or repackaging the substance and labeling or relabeling its container.

“Controlled Substance” means any drug or substance listed in Schedules I through VI of North Carolina Criminal Law Chapters 90-89 through 90-94.

North Carolina law requires the name or names of the individuals to whom the drugs are sold or transferred to be listed in the indictment or listed as unknown if they are in fact unknown.

It is important to note that possession of a controlled substance is a lesser included offense of possession with intent to manufacture, sell or deliver.

2. Examples of Possession of Controlled Substance with Intent to Manufacture, Sell and/or Deliver

Evidence of plastic bag corners, two sets of scales, and Ziploc bags found with marijuana was sufficient to prove manufacturing. Defendant need not be in actual possession of the items. Constructive possession is sufficient to charge a Defendant with manufacturing.

Insufficient evidence existed where Defendant was found in possession of 10 rocks of crack cocaine, but no incriminating statements were made by the Defendant and there was no behavior or other circumstances associated with drug transactions.

Defendant can be charged with possession with intent to manufacture sell or deliver where 5.5 grams of crack cocaine individually wrapped in 22 pieces and placed in the corner of a paper bag were found on his or her person or in close proximity to it.

3. Defenses to the Crime of Possession of Controlled Substance with Intent to Manufacture, Sell and/or Deliver

The Defendant has the burden of proving that or she had the requisite authority to sell or deliver a Schedule I through VI controlled substance. Additionally, a physician who writes a prescription for a controlled substance outside of the normal course of his or her medical practice may not be charged under North Carolina Criminal Law Section 90-95. Rather, they may be charged under North Carolina Criminal Law Section 90-108(a)(2).

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, Defendant may challenge whether sufficient evidence exists to convict them of intent to manufacture, sell or deliver a controlled substance.

4. Punishment/Penalties

The penalties for the sale or delivery of a controlled substance vary depending on the Schedule Level of the narcotic. Below is a listing of the various penalties by Schedule:

  • For a Schedule I or II substance, the crime is a Class H Felony punishable by a maximum period of incarceration ranging from 4 to 25 months.
  • For a Schedule III, IV, V or VI substance, the Crime is a Class I felony punishable by a maximum period of incarceration ranging from 3 to 12 months.
Criminal Defense for Sale or Delivery of Controlled Substances

If you or someone you love has been arrested or charged with a drug offense, it is imperative that you seek legal counsel immediately. A lawyer can advise you of your rights and make you aware of available defenses that can be made prior to or at trial.

A criminal conviction for possession of a controlled substance with the intent to sell, deliver or manufacture can cause substantial problems in the future. The stigma associated with a so-called “drug dealing” conviction can have a detrimental impact on your future employment opportunities and ability to obtain financial assistance for loans, housing, etc.

Bill Powers is Board Certified Criminal Law Specialist by the National Board of Legal Specialty Certification / National Board of Trial Advocacy. Megan S. Powell and Chris J. Beddow are part of Bill Powers North Carolina criminal law defense team. It’s imperative to begin your defense without delay. Please call 704-342-4357 immediately.

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