Attorney Ben Hiltzheimer is an experienced criminal defense attorney with over a decade of experience litigating complex criminal cases on behalf of the accused.

Durham Drug Defense Lawyer

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.

Conditional Discharge: N.C.G.S. § 90-96

North Carolina law has what is known as a “conditional discharge” option for certain first-time drug offenders, under N.C.G.S. § 90-96. If you are charged with a misdemeanor drug offense or a felony charge for mere possession, you may be eligible for conditional discharge under 90-96. This can apply to possession of marijuana, possession of drug paraphernalia, or felony possession of cocaine, heroin, methamphetamine, ecstasy (aka Molly, or MDMA), etc. In short, that means there may be an option for you to get your case dismissed in its entirety if you are willing to jump through some hoops, including drug classes, probation, and other potential conditions over a period of time.

If you have no prior felony convictions and no prior convictions for drug possession, or possession of drug paraphernalia (PDP), then you can plead guilty — or be convicted following a trial — of a misdemeanor drug charge, 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 you complete probation and any associated conditions successfully under the 90-96 program, your case will be dismissed. (Note: The judge can technically only deny your entry into 90-96, when otherwise eligible, by determining in writing, and with the agreement of the District Attorney, that you are “inappropriate for a conditional discharge for factors related to the offense” — but who knows what that means.)

If you fail to complete probation successfully, on the other hand, a criminal conviction may automatically result, because by entering into the program you must admit guilt and give up your right to a trial. As long as you do everything you’re required to do, that won’t be a problem.

Informal Deferred Prosecution

But, you can only enter 90-96 once, and there may be other options available. In some cases, an attorney is able to negotiate an informal deferred prosecution agreement outside of the formal 90-96 statutory framework, which would allow you to preserve your ability to take advantage of 90-96 at some time in the future.

Or you may want to take your case to trial, in which case you don’t want just any attorney bumbling through your case.

Call Our Office for a Free, Confidential Consultation

Call a Durham criminal defense lawyer if you have been arrested or charged with any misdemeanor or felony drug offense in Durham, North Carolina, or surrounding counties. Contact us today for a free, confidential consultation and case evaluation at (919) 899-9404.

Possession of a Controlled Substance: N.C.G.S. 90-95(a)(3)

Under North Carolina law, if you are alleged to be in possession of a controlled substance (as defined under State law (not to be confused with the different federal schedule), the State may charge you with PWISD. You can be charged with PWISD Marijuana (Schedule IV), PWISD Cocaine (Schedule II), PWISD Heroin (Schedule I), or any other substance appearing on the state list.

  • 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 certain specific Schedule II (N.C.G.S. § 90-90) controlled substances is also a Class I felony, including cocaine, methamphetamine, and others identified in N.C.G.S. § 90-95(d)(2).
  • 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.

PWISD: Possession with Intent to Sell or Deliver a Controlled Substance: N.C.G.S. § 90-95(a)

Under North Carolina law, if you are alleged to be in possession of a controlled substance (as defined under State law (not to be confused with the different federal schedule), the State may charge you with PWISD. You can be charged with PWISD Marijuana (Schedule IV), PWISD Cocaine (Schedule II), PWISD Heroin (Schedule I), or any other substance appearing on the state list.

In order to prove PWISD, the State must prove more than mere possession. Specifically, the prosecutor must prove that your state of mind at the time of the possession rose to the level of the intention to sell or deliver the substance to another party.

In some cases, the State will seek to prove that intent by way of circumstantial evidence. For example, if you are found to be in possession of a quantity of cocaine, and in addition to that cocaine, you are in possession of a number of small baggies and a scale, then you will almost certainly be charged with PWISD as a result of the State’s theory that the presence of the alleged paraphernalia proves your intent to sell or deliver the cocaine to others.

There are, however, viable defenses to felony drug charges. Can the State prove that you were in possession of the controlled substance, as opposed to some other party who may have been present in the same location? Has the State proven that the substance was, in fact, a controlled substance — as opposed to a fake, or an analog that is not illegal? Has the State proven the requisite knowledge and intent to meet the elements of a felony charge?

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, or Vehicle for the Purpose of Keeping or 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:

  1. knowingly,
  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.

Call Our Office for a Free, Confidential Consultation

If you’ve been charged with a felony drug crime, you need experienced counsel in your corner. Call a Durham criminal defense lawyer if you have been arrested or charged with any misdemeanor or felony drug offense in Durham, North Carolina, or surrounding counties. Contact us today for a free, confidential consultation and case evaluation at (919) 899-9404.

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.

Controlled substances in North Carolina are categorized into schedules, which are not always identical to the federal schedules for the same substances. Schedule I drugs are considered to be the most serious and carry the highest penalties.

NC Controlled Substances Chart

Schedule I Has a “high potential for abuse”; no medical use; lack of accepted safety.
  • Heroin
  • Ecstasy
  • LSD
  • GHB
  • Methaqualone
  • Peyote
  • Opiates
  • (and others)
First Offense:
Class I Felony
4-5 Months
Schedule II Has a high potential for abuse; accepted medical use with severe restrictions; abuse may lead to physical or psychological dependence.
  • Cocaine
  • Raw Opium
  • Opium Extracts, Fluid and Powder
  • Codeine
  • Hydrocodone
  • Morphine
  • Methadone
  • Methamphetamine
  • Ritalin (and others)
First Offense:
Class 1 Misdemeanor
45 Days in Jail
Second Offense Class I Felony
4-5 Months
Schedule III Has potential for abuse, but less than Schedule I or II substances; has accepted medical use; abuse may lead to limited dependence.
  • Ketamine
  • Anabolic Steroids
  • Some Barbituates
  • (and others)
First Offense:
Class 1 Misdemeanor
45 Days in Jail
Second Offense Class I Felony
4-5 Months
Schedule IV Has a low potential for abuse & accepted medical use; abuse may lead to limited dependence.
  • Valium
  • Xanax
  • Rohypnol
  • Darvon
  • Clonazepam
  • Barbital
  • (and others)
First Offense:
Class 1 Misdemeanor
45 Days in Jail
Second Offense Class I Felony
4-5 Months
Schedule V Has a low potential for abuse & accepted medical use; abuse may lead to limited dependence.
  • OTC cough medicines w/ codeine
  • (and others)
First Offense:
Class 2 Misdemeanor
30 Days in Jail
Second Offense Class 1 Misd.
45 Days in Jail
Schedule VI Has a low potential for abuse.
Has no accepted medical use.
Abuse may lead to limited dependence.
  • Marijuana
  • Hashish
  • Hashish Oil
First Offense:
Class 3 Misdmeanor
10 Days in Jail or Suspended Sentence
Second Offense Class 2 Misd.
30 Days in Jail

Drug Trafficking Penalties

Marijuana
  • 10 – 49 lbs.
  • 50 – 1,999 lbs.
  • 2,000 – 9,999 lbs.
  • 10,000 lbs. or more
  • Class H Felony 25 – 30 Months
  • Class G Felony 35 – 42 Months
  • Class F Felony 70 – 84 Months
  • Class D Felony 175 – 219 Months
  • $5,000 Fine
  • $25,000 Fine
  • $50,000 Fine
  • $200,000 Fine
Heroin
  • 4 – 13 grams
  • 14 – 27 grams
  • 28 grams or more
  • Class F Felony 70 – 84 Months
  • Class E Felony 90 – 117 Months
  • Class C Felony 225 – 279 Months
  • $50,000 Fine
  • $100,000 Fine
  • $250,000 Fine
Cocaine
  • 28 – 199 grams
  • 200 – 399 grams
  • 400 grams or more
  • Class G Felony 35 – 42 Months
  • Class F Felony 70 – 87 Months
  • Class D Felony 175 – 219 Months
  • $50,000 Fine
  • $100,000 Fine
  • $250,000 Fine
Methamphetamines
  • 28 – 199 grams
  • 200 – 399 grams
  • 400 grams or more
  • Class F Felony 70 – 84 Months
  • Class E Felony 90 – 117 Months
  • Class C Felony 225 – 279 Months
  • $50,000 Fine
  • $100,000 Fine
  • $250,000 Fine

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.