Attorney Ben Hiltzheimer is an experienced criminal defense attorney with over a decade of experience litigating complex criminal cases on behalf of the accused.
Whether you are charged with simple possession of marijuana, cocaine, heroin, or other controlled substance, or a more serious charge involving sale or distribution (PWISD) or maintaining a vehicle or dwelling, your first step should be to contact an experienced drug defense lawyer to fight for you both in and out of court. Mr. Hiltzheimer has represented individuals charged with every drug crime on the spectrum, from simple possession to trafficking. Mr. Hiltzheimer fights hard — when it’s in the client’s interest to do so — and has achieved dismissals and not guilty verdicts in drug cases of all kinds against long odds.
If you’re charged with a drug offense for the first time, however, you may be eligible for an option that doesn’t require a trial to achieve the best case scenario, which is a complete dismissal of the charges.
First Time Drug-Offenders: N.C.G.S. 90-96
If you’re charged with a first-time drug offense under North Carolina state law, you may be eligible for a “conditional discharge” under N.C.G.S. 90-96, which allows a defendant to enter into a plea agreement without incurring a criminal conviction, if he or she successfully completes probation. In short, any individual with no prior felony convictions and no prior drug or paraphernalia convictions of any kind may plead guilty (or be convicted at trial) of any misdemeanor or felony drug possession charge under N.C.G.S. 90-95(a)(3), and be placed on probation without judgment being entered by the judge. If the defendant successfully completes probation, the court will dismiss the charge and the case will not result in a criminal conviction. If the defendant violates probation or otherwise fails to complete it successfully, on the other hand, a judgment may be entered and a criminal conviction will result.
Possession of a Controlled Substance: N.C.G.S. 90-95(a)(3)
Under North Carolina law it is a crime to be in possession of any controlled substance listed under the state schedule, which is not identical to the federal schedule of controlled substances. The severity of the charge depends on the substance.
Mere possession of any Schedule I substance (listed under N.C.G.S. § 90-89) is a Class I felony. Schedule I controlled substances include heroin, LSD, ecstasy/MDMA/Molly, psilocybin (hallucinogenic mushrooms), and DMT (among many others).
Possession of a Schedule II substance not listed in 90-95(d)(2) (e.g. opium, hydrocodone, or oxycodone), as well as possession of Schedule III (e.g. ketamine) or IV (e.g. Valium/alprazolam or Ambien/zolpidem) controlled substances, is a Class 1 Misdemeanor.
Possession of a Schedule VI controlled substance is a Class 3 misdemeanor. The most common Schedule VI controlled substance is marijuana/cannabis. Schedule VI also includes synthetic cannabinoids.
Manufacture/PWISD/Sale/Delivery of a Controlled Substance: N.C.G.S. 90-95(a)(1)
The manufacture, delivery, or Possession with the Intent to Sell/Deliver any Schedule I or II substances is a Class H felony. The actual sale of a Schedule I or II substance is a Class G felony.
Possession with the intent to sell or deliver (PWISD) a controlled substance — whether cocaine, marijuana, MDMA/Ecstasy/Molly, heroin, or other — is a serious felony offense in North Carolina. In order to prove that offense, the State must prove beyond a reasonable doubt that you were 1) knowingly in possession of the controlled substance, and 2) that you had the intent to sell or deliver it to another person.
In many cases, the prosecution will argue that you had the intent to sell or deliver based solely on the quantity of the substance in your possession. In other cases, the prosecutor will point to other items in your possession that tend to be linked to the distribution of narcotics — things like scales, baggies, and other “paraphernalia” associated with drug distribution. The state will argue that possession of one or more of these items in addition to a controlled substance amounts to circumstantial evidence of the intent to sell or deliver.
Maintaining a Dwelling/Store/Building Vehicle for the Purpose of Keeping/Selling Controlled Substances: N.C.G.S. 90-95(a)(1)
The crime of “maintaining a dwelling” (or vehicle, etc.) can be charged as either a misdemeanor or a felony, depending on the specific conduct alleged in a given case.
In order to prove “maintaining a dwelling (or vehicle, etc.)” under North Carolina law, the prosecutor has to prove a number of things. Specifically, the State has to prove that you:
2) “kept or maintained”,
3) a house/store/vehicle/boat/etc.,
4) (a) being resorted to by persons unlawfully using controlled substances OR (b) being used for unlawfully keeping or selling controlled substances.
To prove that a place or vehicle was “kept or maintained,” the State may use evidence of ownership, or show that the accused pays utility bills or taxes on the property, paid for repairs on the property, among other indicia of an ownership interest. Residency alone is insufficient to establish that an individual “kept or maintained” a location within the meaning of the law.
To prove that the premises are used for unlawfully “keeping” controlled substances, on the other hand, the State must prove something more than mere possession of controlled substances in a location. Instead, the State must prove that the dwelling is used over a period of time for the purpose of keeping controlled substances, or on multiple occasions. Similarly, to prove that property is used for selling controlled substances under this section of law, the State must prove more than a single transaction at the location.
Drug Trafficking: N.C.G.S. 90-95(h)
Drug trafficking under North Carolina law is treated separately from other drug crimes when it comes to potential penalties. Anyone convicted of a trafficking charge will be sentenced according to the Drug Trafficking Sentencing Grid.
The penalties for drug trafficking in North Carolina are harsh. In fact, even on a first offense, the court is prohibited by law from sentencing an individual convicted of drug trafficking at any level to probation, unless that individual has provided “substantial assistance” in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals, if the sentencing judge enters in the record a finding that the defendant has rendered such substantial
assistance. In other words, your only shot at probation is to snitch, and to go on the record as a snitch.
If you’re facing a trafficking charge, it is essential that you have experienced defense counsel in your corner as you navigate the harsh realities of North Carolina drug laws.
You Have Options
If you are charged with a drug crime, you have options. Even if you’re not eligible for a conditional discharge or other form of deferred prosecution in your state drug case, you still have options. There may be constitutional challenges available relating to the stop/detention that led to the discovery of the alleged drugs in your case. There may be constitutional issues relating to your arrest, or a search that was executed of your person, home, or vehicle, either with or without a warrant.
There may be trial defenses available relating to the government’s ability to prove possession, or the act of sale or distribution that is alleged in your case. A skilled trial attorney may be able to develop a creative defense theory in a case that appears hopeless on its face.
Contact an experienced trial attorney today for a free, confidential consultation on your case at (919) 899-9404.