Possession of a Controlled Substance in NC

When life gets too much to handle, it is normal to look for a way to unwind and de-stress. Sometimes, we may look for a way to medicate our problems. However, under North Carolina law, possession of a controlled substance carries misdemeanor or felony charges with the accompanying penalties. Even if you just wanted to try something to reduce stress but ended up getting caught with it, you can still face criminal charges. 

Whether you struggle with an ongoing addiction issue or just got caught holding the bag, there are often ways to escape without a criminal record. Let’s look at ways to handle a possession charge for a controlled substance in NC.

Will I Go to Jail?

The consequences you face for possession of a controlled substance are related to a few factors. Your attorney, the prosecutor (and in some instances, the judge) will all look at:

• Your past convictions for substances
• Other past convictions
• Amount of substance you possess
• Type of substance that you possess

Whether you’re stuck with a conviction or not can sometimes depend on the prosecutor and their relationship with your attorney. Quite often, especially if you are a first-time offender, a prosecutor may let you face other types of consequences such as a deferred prosecution or a diversion program.

What are Controlled Substances in NC? 

NC classifies drugs according to a schedule. Some of these substances are prescription drugs that are not illegal to possess if you have a valid prescription for the medication (unless you’ve taken more than prescribed).

You can check out the helpful information below about each schedule to see what you may be facing with a possession charge. For a more in-depth list of scheduled substances, see NC Law.

Schedule 1 Substances

Schedule 1 drugs are not medically helpful and have serious addiction potential. Possession of a small amount of these substances can bring you up to five years in prison, hefty fines, and a felony criminal record. They are always illegal to possess and include:

• Heroin, LSD, Peyote, Mescaline, Psilocybin (Shrooms), other Hallucinogens, Methaqualone (Quaaludes), Phencyclidine (PCP), and MDA

Schedule 2 Substances

Schedule 2 drugs don’t carry quite the same level of severity of punishment for possession. The maximum penalty for possessing a small amount of a schedule 2 substance is two years in prison, a $2,000 fine, and a criminal record. These substances include:

• Morphine, Demerol, Codeine, Percodan, Percocet, Fentanyl, Dilaudid, Seconal, Nembutal, Cocaine, Amphetamines, and other opium and opium extracts and narcotics

Schedule 3 and 4 Substances 

If you possess less than 100 dosage units of these scheduled substances, you can face up to 2 years in prison, fines, and a criminal record. 

• Schedule 3 substances include: Barbiturates containing codeine, Doriden, Tylenol #3, Empirin#3, Tussionex, Hycomine, and all anabolic steroids. 

• Substances on Schedule 4 include: Barbiturates, narcotics, and stimulants including Valium, Talwin, Librium, Equanil, Darvon, Darvocet, Placidyl, Tranxene, Serax, Ionamin

Schedule 5 Substances

For schedule 5 substances, you could face six months in prison and fines with a misdemeanor criminal record. These scheduled substances include:

• Compounds with limited codeine, dihydrocodeine, ethylmorphine, opium, and atropine, such as Terpene Hydrate with codeine, Robitussin AC

Schedule 6 Substances

If charged with possession, you could spend 30 days in prison and pay a fine. If you possess more than 1.5 oz marijuana, you could spend two years in jail and face fines and a criminal record. 

• Marijuana, THC, Hashish, Hash Oil, Tetrahydrocannabinol

Diversion Programs

Six counties in North Carolina (Durham, Wake, Orange, Cumberland, New Hanover, and Buncombe) have formal Misdemeanor Diversion Programs. (1)  

Each county that has a diversion program has different qualifications for getting in. Sometimes, the district attorney may send you to the program. Other times, your attorney may negotiate with the prosecutor to get you a spot. 

Some programs are specifically for 16 to 17-year-olds who only commit certain misdemeanors. In Durham county, there is a program for ages 18 through 26 called the “Misdemeanor Diversion Program.” Durham county also instituted a new program in 2020 for everyone called the “Post-Arrest Diversion Program.” Wake County has a “Recovery Court Program.”

Many of these programs exist specifically to help drug offenders who have an addiction problem. If law enforcement charges you with possession of a controlled substance, talk with your attorney about what diversion programs may be available in your county. 

Often, if you finish a diversion program’s requirements, you no longer face criminal charges, other penalties, or jail time. You also no longer hold a criminal record.

Deferred Prosecution

Deferred prosecution is another way you may avoid a criminal record. This type of program may allow you to do a drug counseling program or volunteer community service instead of facing the judge for sentencing.  

When you finish the requirements of your deferred prosecution, you no longer have a criminal charge pending and can be eligible to expunge your criminal record. A criminal record can prevent you from obtaining a good job, an apartment, or government benefits, and wreak havoc on relationships in your life with neighbors or possible friends. 

North Carolina authorizes a deferred prosecution for any misdemeanor and any Class H or I felony. However, you still must meet specific legal requirements to qualify.

Don’t Incriminate Yourself

Law enforcement officers often engage in tactics that may be unconstitutional. As someone charged with PWISD in NC or misdemeanor or felony possession of a controlled substance, you still have rights. You have the right to:

• Not give self-incriminating evidence against yourself.
• Be informed of the charges against you. 
• Refuse to speak about what happened without an attorney present.
• The right to be free from searches and seizures except when:
  • There is a warrant that names you or
  • Law enforcement has a limited exception to the warrant requirement 

What Can A Criminal Defense Attorney Do?

An experienced attorney investigates the circumstances surrounding your arrest and analyzes the case from the beginning to see if there is a legal basis for a motion to suppress and dismiss the charges. 

An attorney is your representative and often works with the prosecution to get charges dismissed or reduced. Sometimes, your attorney can help you get into a program that defers or dismisses your charges upon completion.

We Can Help

At Scharff Law, our experienced criminal law team investigates unlawful search and seizures while looking at whether the prosecutor may agree to reduce or dismiss charges. We discuss your options and may help you join a diversion program or deferment program instead of facing judicial penalties. Don’t let the fear and anxiety of facing charges keep you from finding the best possible representation under the law. Contact us today and find out how we can help you.