Drug possession is a common offense, but nevertheless it is taken very seriously in North Carolina. If convicted, you could face a prison sentence, hefty fines, and a criminal record that will compromise your ability to live a normal life for years to come.
Depending upon the substance in question, drug possession is usually considered a Class 1 felony or Class 1 Misdemeanor in North Carolina. This is punishable by up to one year in jail or prison, as well as hefty fines. It is therefore important to know your rights and be aware of possible defenses for drug possession charges.
In an unwitting possession case, the defendant had actual possession of the drugs, but was unaware that he or she was in possession. In this case, the defendant cannot be found legally guilty of possession because it was not intentional. For example, if an individual mails a drug-containing package with a messenger service, the messengers cannot be held legally liable for drug possession if they are later caught with the drugs.
Unwitting possession can also be used in a constructive possession charge, in which the defendant is found to have drugs in his or her place of residence, workplace, or vehicle. For example, if the police search the defendant’s apartment and find drugs that the defendant was not aware were there, the most appropriate defense would be unwitting possession.
Lack of Possession
Lack of possession is another common defense to constructive possession charges. This defense is often used when it cannot be proven that the defendant had the intent and ability to possess or control the drugs, known as dominion and control. For example, if the defendant is pulled over with several passengers and drugs are found in the vehicle, the prosecution may be unable to prove who the drugs actually belonged to.
Unlawful Search and Seizure
The US Constitution’s Fourth Amendment guarantees citizens the right to the due process of law, including lawful search and seizure procedures prior to arrest. Search and seizure violations are quite common in drug possession cases.
If illegal drugs are found in “plain view,” such as on the car’s dashboard during a routine traffic stop, they can be seized as evidence for possession. However, concealed drugs found without probable cause or intent to search cannot be entered into evidence.
If the defendant’s Fourth Amendment rights are violated, the substance in question cannot be used as evidence in the trial and the charges are ordinarily dismissed.
Crime Lab Analysis
In order to prove that the defendant was in possession of illegal drugs, the prosecution must prove that the seized substance was indeed the illicit drug alleged by sending the evidence to a crime lab for analysis.
Additionally, the chain of custody for all evidence must be appropriately documented, and the crime lab analyst must testify at trial. A skilled defense attorney will be able to point out any lapses in analytic and chain of custody procedures.
To make its case, the prosecution must be able to produce the actual drugs for which the defendant is being charged. If the prosecutor loses or otherwise lacks the actual drugs, or has not documented the chain of custody, the case may be dismissed.
Seized drugs are typically transferred several times before reaching the evidence locker, so it should never be assumed that the evidence exists during a trial. A skilled defense attorney will make sure that the prosecution is able to produce the evidence.
Although law enforcement is allowed to set up sting operations to catch suspects engaging in illegal activity, these operations cannot provoke defendants to commit a crime they would not otherwise commit.
For example, if an informant pressures a suspect into passing drugs to a third party, this may be considered entrapment for drug possession. As a general rule, entrapment may apply when the state provides the drugs in question.
Drugs Were Planted
In some rare cases, the police or others may actually plant the drugs in question. This can be a difficult to defense to make, as it is fortunately rare, and officers may be reluctant to turn in or testify against their fellow officers.
If you or a loved one are facing drug possession charges, it is imperative to retain the best available North Carolina criminal defense attorney as early in the process as possible.
He or she can make sure that your rights are protected during the investigation, and can help build the best possible defense for your case. It may even be possible to get your case thrown out entirely before it goes to trial.
About the Author:
Jan Elliott Pritchett?is Managing Partner at the Law Firm of?Schlosser & Pritchett?and one of North Carolina’s top rated criminal defense attorneys. With a practice dedicated 100% to litigation, Mr. Pritchett protects the legal rights of clients who have been charged in federal and state criminal matters, as well as DUI/DWi, motor vehicle accidents, personal injury, and traffic violations. In practice since 1995, Mr. Pritchett has earned a reputation as a highly talented and fearless lawyer, being listed among the state’s “Legal Elite” and recognized as one of the Top 100 DWI Lawyers in North Carolina by the National Advocacy of DUI Defense.? He currently serves as the Co-Chairman of the North Carolina State Board of Legal Specialization, Criminal Law Specialty, and Vice-Chairman of the North Carolina Bar Association, Criminal Justice Section.