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North Carolina Criminal Law Chapter 90-95: Possession of an Immediate Precursor Chemical

Definition and Elements of the Crime

Under North Carolina Criminal Law Chapter 90-95(d1) and (d2), the crime of possession of an immediate precursor chemical is defined as knowingly possessing and/or distributing a precursor chemical with knowledge that the precursor chemical would be used to manufacture a controlled substance or knowingly possessing a precursor chemical with the intent to manufacture a controlled substance.

To prove a charge of possession of an immediate precursor chemical, the State must be able to establish the following prima facie elements Beyond a Reasonable Doubt:

  1. Defendant knowingly possessed and/or distributed (name substance). (Name(d) Substance) is an immediate precursor chemical and
  2. That the Defendant
    1. Knew or had reasonable cause to believe the immediate precursor chemical would be used to manufacture (name substance), a controlled substance OR
    2. Intended to manufacture a controlled substance

“Immediate precursor” is defined as a substance that is the principal compound commonly used or produced primarily for use (and which is an immediate chemical intermediary used or likely to be used) in manufacturing a controlled substance.

A person “possesses” a chemical when he or she is aware of its presence and has, either by himself or herself or together with others, both the power and intent to control the disposition or use of that substance.

A person “distributes” a chemical when he transfers it to another.

“Intent” is seldom, if ever, provable by direct evidence. It must ordinarily be proved by circumstances from which it can be inferred. The NC Criminal Laws draw no practical distinction between direct evidence or circumstantial evidence.

Under the law, as described in the Pattern Jury Instructions, no greater weight or preference is given to one type of evidence over another.

It is the duty of the Finder of Fact to determine what, if any, evidence to believe or disbelieve. A jury may choose to accept some, all, part of, or none of the evidence presented at trial.

The Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services has the authority to designate chemicals as immediate precursor chemicals.

North Carolina Criminal Law Section 90-95(d2) lists 45 precursor chemicals.

Related Offenses

Other related or similar offenses include:

  1. North Carolina Criminal Law 90-108: Possession of a Controlled Substance (Felony, Misdemeanor)
  2. North Carolina Criminal Law Chapter 90-108: Feloniously Dispensing a Controlled Substance
  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 90-95: Trafficking in Marijuana
  5. North Carolina Criminal Law Chapter 90-95: Possession of a Controlled Substance on Premises of a Penal Institution or Local Confinement Facility
Examples

1. Defendant purchases a large amount of ethyl ether from the black market. Ethyl ether is commonly known to be a principal compound commonly used in the manufacturing of cocaine.

Defendant can be charged with possession of an immediate precursor chemical.

2. Defendant is pulled over for an outstanding warrant. Defendant’s car is found to contain 30 packages of Pseudoephedrine, which is a common principal compound used in the manufacture of methamphetamine.

Defendant can be charged with possession of an immediate precursor chemical.

Unlike other precursor chemical offenses, Defendant can be charged with a Class F felony.

3. Defendant works as a high school biology teacher. As part of a unit of instruction on genetics, he purchases on-line from a chemical company diethyl ether to anesthetize fruit flies to cross-breed and analyze eye color, wing shape, and genetic variables.

While diethyl ether is an immediate precursor chemical, Defendant possesses such controlled substance lawfully or a lawful instructional purpose and therefore cannot be convicted of the felony offense.

Defenses to Possession of an Immediate Precursor Chemical

Challenging possession of a controlled substance is a common defense to drug charges. The Defendant can show that he did not have actual or constructive possession of the precursor chemical or that he did not possess such controlled substance for illicit purpose.

The Defendant bears no Burden of Proof in the prosecution or defense a criminal charge. As such, cross-examination, together with other defense, may be utilized to challenge the State’s theory of actual or constructive possession.

Defendant can show that he neither knew nor had reasonable cause to believe the immediate precursor chemical would be used to manufacture a controlled substance.

Defendant can show that he did not have the requisite intent to manufacture a controlled substance.

Defendant may also seek to prove she or he lawfully possessed the substance.

Penalties

The crime of possession of an immediate precursor chemical is punishable as a Class H felony which carries a maximum period of incarceration of 39 months in the North Carolina Department of Adult Corrections.

However, the crime of possession of an immediate precursor chemical with the intent to manufacture methamphetamine and/or possession/distribution of an immediate precursor chemical with knowledge, or reasonable cause to believe, it will be used to manufacture methamphetamine is punishable as a Class F felony.

A Class F felony is punishable by a maximum period of imprisonment of 59 months.

Other penalties for the felony conviction may include:

  1. Probation
    1. Supervised Probation
    2. Unsupervised Probation
  2. Costs of Court
  3. Fines
  4. Community Service Fees
  5. Electronic Monitoring (EM)
  6. Substance Abuse Assessment
  7. Treatment
  8. Community Service
6. Criminal Defense North Carolina Criminal Law Chapter 90-95, Possession of an Immediate Precursor Chemical Cases

If you have been charged with felony possession of an immediate precursor chemical, please contact an experienced criminal lawyer as soon as possible.

Those are serious felony charges that carry potential long-term consequences, including the possibility of substantial prison terms depending the nature and circumstances of the offense, together with any Prior Record Level (PRL) as determined pursuant to the NC Sentencing Guidelines.

Our Charlotte Criminal Defense Lawyers are here to help guide you through what can be a complicated, if not at times confusing, process.

Our law firm is available for consultation and possible legal representation for serious felony drug charges, including in the judicial districts of Gaston County, Lincoln County, Iredell County, Rowan County, and Union County, North Carolina.

Bill Powers is Board Certified Criminal Law Specialist by the NBLSC - the National Board of Legal Specialty Certification / NBTA – the National Board of Trial Advocacy with more than 26 years practical courtroom experience.

Megan S. Powell and Chris J. Beddow are part of North Carolina criminal law defense team at Powers Law Firm PA. 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 Attorneys. Everything discussed during consultation is confidential.

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