Possession of a Controlled Substance in North Carolina

All states regulate and control the possession of controlled substances. North Carolina classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled substances but also the compounds used to manufacture them.

This article discusses the possession of controlled substances for personal use only. Possession of drugs for sale or distribution carries harsher penalties.

How North Carolina Classifies Controlled Substances

North Carolina classifies controlled substances into six schedules (I to VI), according to their potential for abuse and accepted medical use.

Schedules I to V generally follow the federal schedules and other state schedules with Schedule I drugs having no medical use and the highest likelihood of abuse and Schedule V drugs having accepted medical uses and the lowest likelihood of abuse. Schedule VI is reserved for marijuana and THC. Examples of drugs within each schedule are provided below.

• Schedule I includes drugs such as heroin, psilocybin, MDMA (ecstasy), GHB, and LSD.
• Schedule II includes drugs such as raw opium, codeine, morphine, oxycodone, fentanyl, meth, and amphetamines.
• Schedule III includes drugs such as pentobarbital, ketamine, and anabolic steroids.
• Schedule IV includes drugs such as tramadol, diazepam, flunitrazepam (Rohypnol), and barbital.
• Schedule V includes drugs such as anticonvulsants and cough medicines containing codeine.
• Schedule VI includes marijuana and tetrahydrocannabinol (except THC concentrates of 0.3% or less).

(N.C. Stat. §§ 90-89 to 90-94 (2023).)

What Are the Penalties for Illegal Drug Possession in North Carolina?

North Carolina punishes possession crimes based primarily on the type and amount of the drug involved. Repeat drug offenders are subject to harsher penalties.

Illegal Possession of Schedule I Drugs in N.C.

A person who illegally possesses a Schedule I drug (except for small amounts of MDPV) faces Class I felony penalties of 3 to 24 months of incarceration. For possession of one gram or less of MDPV, the penalty is a Class 1 misdemeanor with up to 120 days of jail time.

Illegal Possession of Schedule II, III, or IV Drugs in N.C.

Illegal possession of the following drugs also results in Class I felony penalties:

• methamphetamine
• amphetamine
• phencyclidine
• cocaine
• fentanyl or carfentanil, or
• four or more dosage units of hydromorphone.

Possession of more than 100 dosage units of any Schedule II, III, or IV drug also carries Class I felony penalties. All other possession crimes for schedule II, III, or IV drugs are Class 1 misdemeanors. (See penalties above.)

Illegal Possession of Schedule V Drugs in N.C.

A person commits a class 2 misdemeanor for illegal possession of a schedule V drug, punishable by up to 60 days in jail.

Illegal Possession of Schedule IV Drugs (Marijuana) in N.C.

Illegal possession of marijuana, hashish, or THC carries the following punishments.

Class I felony penalties (3 to 24 months' incarceration) apply when a person unlawfully possesses:

• more than 1½ ounces of marijuana
• more than 3/20th of an ounce of hashish, or
• any amount of THC or synthetic THC.

Class 1 misdemeanor penalties (up to 120 days in jail) apply to the following amounts:

• more than ½ ounce and up to 1 ½ ounces of marijuana, or
• more than 1/20th and up to 3/20th of an ounce of hashish.

Class 3 misdemeanor penalties (fine only or a suspended jail sentence) apply when the person unlawfully possesses:

• ½ ounce or less of marijuana, or
• 1/20th of an ounce or less of hashish.

(Possession of "hemp extract" is exempt from these penalties.)

Penalties for Repeat Drug Offenses in N.C.

A person who commits a repeat misdemeanor drug offense faces the next higher penalty level:

• class 1 misdemeanor charges bump up to a class I felony
• class 2 misdemeanor charges bump up to a class 1 misdemeanor, and
• class 3 misdemeanor charges bump up to a class 2 misdemeanor.

Will You Serve Jail Time for Drug Possession in North Carolina?

It depends. A person with several prior convictions on record may face jail time, while those who are first- or second-time offenders might receive probation or qualify for the alternatives discussed below.

First-Time Offenders: Conditional Discharge

First-time offenders may qualify for conditional discharge under North Carolina law. The person can't have any prior felonies or prior misdemeanor drug convictions. Conditional discharge provides a first-time offender a chance to avoid a conviction. The judge defers the proceedings without entering a guilty plea or verdict and places the person on probation for at least one year, conditioned on the defendant completing a drug education program. Successful completion means the person won't have a criminal conviction on record. Discharge-and-dismissal under this section is a one-time deal.

(N.C. Stat. § 90-96 (2023).)

Drug Treatment Court

A person charged with drug possession may qualify for drug court through a deferred prosecution agreement or deferred sentence in court. Eligibility for drug court is generally reserved for those with addiction problems who've been charged with a misdemeanor or Class I felony. Drug court programs involve intensive treatment and supervision by a team of legal and community professionals. Successful participants may have their charges dismissed.

(N.C. Stat. § 15A-1341 (2023).)

Possible Defenses to Drug Possession Charges in North Carolina

Defendants facing controlled substance charges have several defense strategies available to them.

Actual innocence. Defendants charged with a drug-related crime have the usual defenses available to all criminal defendants, such as mistaken identity, alibi defense, and factual innocence.

Lack of knowledge. Defendants can try to show the jury that they did not have knowledge of the controlled substance being in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of cocaine under the hitchhiker's seat, the defense may argue the defendant had no knowledge of the bag hidden under their seat.

Unlawful search and seizure. A common defense in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether.

Immunity. North Carolina provides limited immunity to prosecution for drug possession to a person who is experiencing a drug overdose or someone rendering aid to the person. Immunity applies only to misdemeanor possession charges and felony charges for less than one gram of cocaine or heroin. (N.C. Stat. § 90-96.2 (2023).)

Talk to a Lawyer

If you've been charged with a drug-related offense in North Carolina, contact a local criminal defense attorney as soon as possible. A controlled substance conviction can become part of your permanent criminal record and negatively impact your ability to find employment or housing, as well as subject you to fines and fees.