Possession of a Controlled Substance in North Dakota

By , Attorney · Mitchell Hamline School of Law
Updated September 12, 2023

Illegal drug possession can land you with misdemeanor or felony charges in North Dakota. Read on to learn more.

How North Dakota Classifies Controlled Substances

North Dakota divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are some examples of drugs placed into each schedule.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, marijuana, and psilocybin.

Schedule II includes drugs such as raw opium, codeine, oxycodone, morphine, cocaine, fentanyl, carfentanil, and meth.

Schedule III includes drugs such as ketamine, anabolic steroids, and testosterone.

Schedule IV includes drugs such as barbital, diazepam (Valium), flunitrazepam (Rohypnol), and lorazepam (Ativan).

Schedule V includes therapeutic medicines containing low amounts of codeine or other narcotics combined with non-narcotic active ingredients.

(N.D. Century Code §§ 19-03.1-05, -07, -09, -11, -13 (2023).)

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

Most penalties for illegal drug possession are the same regardless of the type and amount of drug, except for marijuana offenses. North Dakota also penalizes the intentional use or ingestion of illegal drugs.

Penalties for Illegal Possession of Schedule I to V Drugs (Not Marijuana)

A person convicted of a first offense for illegal drug possession faces a class A misdemeanor penalty, punishable by up to 360 days of jail time and a $3,000 fine. For a second or subsequent offense, the penalty increases to a class C felony. A class C felony carries a maximum penalty of five years of prison time and a $10,000 fine. If a repeat offense involves five or fewer pills, tablets, or capsules for a Schedule II, III, IV, or V drug, the penalty remains a class A misdemeanor.

Penalties for Illegal Possession of Marijuana and THC Concentrates

Penalties for illegal possession of marijuana and THC concentrates range from an infraction to a class A misdemeanor depending on the amounts involved.

Infraction. A person who possesses less than one-half ounce of marijuana or less than 2 grams of THC concentrate commits an infraction, punishable by a $1,000 fine.

Class B misdemeanor. Class B misdemeanor penalties apply when a person possesses one-half ounce or more of marijuana or 2 grams or more of concentrate. The maximum penalty is 30 days of jail time and a $1,500 fine.

Class A misdemeanor. It's a class A misdemeanor for a person to possess more than 500 grams of marijuana or more than 6 grams of hashish. A person convicted of a class A misdemeanor faces 360 days' incarceration and a $3,000 fine.

Penalties for Intentional Use of Illegal Drugs

North Dakota also makes it a crime to intentionally use illegal drugs. The penalty for most drugs is a class A misdemeanor. Penalties for using marijuana or THC concentrate (except medical marijuana) by a person younger than 21 is a class B misdemeanor. (See penalties above.)

(N.D. Cent. Code §§ 12.1-32-01, 19-03.1-22.3 (2023).)

Enhanced Penalties for Drug Possession Offenses in North Dakota

Enhanced penalties apply to those who illegally possess drugs on school grounds or while carrying a firearm. Possessing large amounts of certain Schedule I or II drugs will also result in enhanced penalties.

Drug Possession Offenses on School Grounds

Any possession offense (other than marijuana) that occurs in or on school grounds, including career and technical schools, is a class B felony. A class B felony carries a maximum 10-year prison sentence and a $20,000 fine.

Possession of Drugs and Firearms

A person who commits any drug crime while in actual possession of a firearm will face charges for the next higher offense level. For instance, a person who commits a class A misdemeanor drug possession offense can be charged with a class C felony if it's determined the defendant also possessed a firearm.

Possession of Large Amounts of Drugs (Schedule I and II)

The law also bumps up the penalty to the next higher offense level when a person possesses:

  • 50 grams or more of a substance containing heroin, meth, or cocaine
  • 10 grams or more of phencyclidine (PCP) or 100 grams or more of a substance containing PCP
  • 1 gram, 100 dosage units, or one-half ounce or more of a substance containing LSD
  • 100 dosage units or one-half ounce or more of a substance containing MDMA, flunitrazepam, or GHB.

(N.D. Cent. Code §§ 19-03.1-23, -23.1 (2023).)

Will First-Time Offenders for Drug Possession Get Jail Time in North Dakota?

North Dakota law authorizes a number of sentencing alternatives that avoid jail time, as well as options that avoid a conviction. First-time, low-level drug offenses would likely qualify, but these alternatives hinge on the defendant's compliance with the court or prosecutor's terms.

Pretrial Diversion Programs

North Dakota court rules permit pretrial diversion agreements between the defendant and prosecutor with court approval. In a diversion program, the prosecutor will hold off on proceeding with the charges as long as the defendant agrees to and abides by certain terms. Generally speaking, the defendant can't commit any new crimes and will likely need to attend treatment, maintain employment, and pay court fees. Upon successfully completing the terms of the diversion agreement, the court dismisses the cases. (N.D. R. Crim. P. 32.2 (2023).)

Deferred Sentencing or Probation

In certain cases, a judge might agree to place a defendant on probation, with or without imposing a sentence. If convicted of a misdemeanor or class C felony, the law typically requires probation over incarceration. Probation allows the defendant to serve their time in the community rather than behind bars.

A judge might agree to probation and a deferred sentence. In this case, a judge accepts a guilty plea but holds off on imposing a sentence. The judge places the defendant on probation with terms similar to those described above. Successful completion of a deferred sentence means the judge may set aside or vacate the conviction and dismiss the case.

(N.D. Cent. Code §§ 12.1-32-02, -07.1, -07.4 (2023).)

Drug Court

A judge may place a defendant in drug court if supervised treatment is needed. Drug court typically involves intensive supervision by a team of professionals, including a judge, attorneys, probation officers, and treatment providers.

Drug court works through a series of incentives and sanctions designed to keep a defendant on track with addiction treatment and leading a law-abiding life. Successful completion of drug court can result in a dismissal and sealing of the case for misdemeanor charges. For felony charges, the court will reduce the case to a misdemeanor conviction.

(N.D. Cent. Code §§ 12.1-32-07.2, 19-03.1-23 (2023).)

Possible Defenses to Drug Possession Charges in North Dakota

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 "Someone else committed this crime," or "the alleged conduct did not occur."

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 heroin under the hitchhiker's seat, the defense will 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. Defense teams do this by scrutinizing and calling out faulty or suspect police methods used in gathering or handling the evidence.

Overdose prevention and immunity. North Dakota law offers immunity from prosecution for drug possession or use charges to Good Samaritans who call 911 for someone experiencing an overdose. To receive immunity, the person must remain on the scene and cooperate with officials. The law also extends immunity to the person experiencing the overdose. (N.D. Cent. Code § 19-03.1-23.4 (2023).)

Talk to a Lawyer

If you've been charged with a drug-related offense in North Dakota, contact a local criminal defense attorney as soon as possible. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.

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