Criminal Defense – North Carolina Marijuana Possession

North Carolina Statutes hold that it is a crime to knowingly or intentionally possess any amount of marijuana. In North Carolina, marijuana is classified as a Schedule VI substance, which means that it is considered to have a low potential for abuse or addiction. Schedule VI is the lowest in severity of all controlled substances as it poses little risk for dependency or abuse, which means that marijuana possession is punished less severely than possession of other drugs. However, it is still illegal to drive under the influence of marijuana in North Carolina.

Penalties vary according to the amount possessed. The gradient weight measurements used by the NC legal system are: (1) up to half an ounce; (2) between half an ounce and one and a half ounces; and (3) more than one and a half ounces. The penalties, both fines and potential jail time, increase with each increase in amount of possession.

Law enforcement must have probable cause to search a vehicle, premise, or person for possession of an illegal substance. Generally a law enforcement officer needs to see a warrant to search a vehicle or premise, but there are circumstances that allow a warrantless search. The smell of marijuana is generally enough to provide a law enforcement individual with probable cause to perform a warrantless search, and is frequently cited by police in Court with success. Law enforcement officials have also cited “nervous behavior” during questioning as reasoning for a more in depth search. Remember, you do not have to voluntarily provide self-incriminating information to law enforcement officers.

Also note that the defense of “it wasn’t mine” is not an automatic get out of jail free card. This is because of a concept in drug cases referred to as “Constructive Possession”, which is how one can be charged with possession of a substance that they may not have even been aware of. As long as you have control over and access to the area where the drug is stored or sitting, you could be charged with the possession. Do realize that this does not mean that a constructive possession prosecution theory will always fly. A skilled defense attorney may be able to apply the facts of your matter in a viable defense. Hiring a defense lawyer who is willing to prepare an aggressive defense to possession charges could make a difference in the outcome.

In Asheville and Buncombe County marijuana possession charges for half an ounce or less are generally prosecuted in “Nuisance Court.” This can be advantageous for a defendant who does not believe that he or she has a viable defense (such as no probable cause for a warrantless search). Generally a defendant in Nuisance Court can have his or her charges dismissed through a plea agreement, upon completion of community service (typically between 15 and 30 hours) and payment of the court costs (around $200.00). Nuisance Court involves at least two court appearances – one to set the amount of community service hours required by the District Attorney and sign the plea agreement, and the second for the DA to review the hours worked and confirm the requirement has been completed. Generally, a defendant can get one continuance if he or she needs more time to complete the community service requirement. After community service hours have been completed and completion is confirmed by the Court, the guilty plea originally entered will be withdrawn and the District Attorney will dismiss the charges. Hiring knowledgeable counsel may ensure that your matter goes to Nuisance Court, all viable defenses are pled, and that you are well informed of the terms and requirements of the plea agreement throughout the legal process.

It is always in the discretion of the Buncombe County District Attorney’s Office to admit a case into nuisance court, but other offenses often handled through Nuisance Court include: misdemeanor larceny, vandalism, shoplifting, possession of drug paraphernalia (PDP), underage possession or consumption of alcohol, resisting a public officer, and trespassing. Other charges may be handled through nuisance court depending on the circumstances.

The best way to avoid criminal charges for possession is not to be involved in such activities. If does possess a substance they will have a greater chance of avoiding criminal charges by not providing law enforcement with a reason to be pulled over, questioned, or searched. Additionally, if one is a situation with law enforcement they should avoid creating probable cause to be searched. One should not lie to law enforcement officials, but you do not have to voluntarily provide incriminating facts or statements which could implicate you or create probable cause for a warrant or warrantless search. While silence or requesting your attorney may protect an individual in an extremely potential bad situation, politely, respectfully, and calmly corresponding with a police officer, without incriminating oneself, may get someone out of a simple situation most efficiently.

Forrest P. Merithew, Attorney at Law, has worked with a number of criminal defense clients in District, Administrative, and Buncombe County Nuisance Court. He has found success and what he believes to be an appropriate justice system alternative to possession of minor amounts of marijuana through the Nuisance Court program.

UPDATE: Be aware that the North Carolina legislature is in the process of vetting and passing Bill 637, which will decrease the penalties for marijuana. Amounts less than one ounce will be a criminal infraction and simply require the paying of a fine, but still be on one’s record. It is believed that this decrease in penalties will result in the removal of offenders possessing less than an ounce from Nuisance Court. It is not yet clear if the next two measurements (1 to 1 and a half ounces and 1 and a half ounces to 2 ounces) will be allowed Nuisance Court remediation. Possession of two ounces or more will be a Class I Felony. While, the bill will decrease penalties for possession of smaller quantities of marijuana, it still results in criminal charges, where other states make such legal changes have moved posssession of minor amounts into the civil infraction arena, like a traffic ticket.

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