Drug Distribution and Manufacturing Charges
Drug manufacturing and distribution is a serious crime in North Carolina and federal court with harsh consequences depending on the type of drugs involved and scale of the production and distribution operations. While these charges are typically reserved for smaller scale drug operations, as opposed to drug trafficking charges, they still carry serious penalties and can be charged against you in unexpected ways. A key element of these charges in both North Carolina and federal court is that the law does not distinguish between the intention to produce or distribute drugs and actually performing the crime. This means you can be charged for this crime for any number of potentially related activities, including:
- Being in possession of a drug or its immediate precursor that the court is convinced you intended to distribute or use in manufacturing.
- Getting involved in any step of drug production, including labeling, harvesting, and purchasing ingredients. For example, purchasing over-the-counter decongestants which somebody else used to create methamphetamines.
- Maintaining a home or vehicle that has been used for production or distribution of drugs.
- Delivering drugs, whether or not you were directly involved in the sale of drugs.
Despite the overwhelming number of ways you can face these charges, a key aspect of these cases that is on your side is that prosecutors must prove beyond a reasonable doubt that you:
- Knowingly were involved in the production or distribution or a controlled substance or had had the intention to be involved.
- Knew that the drug in question was a controlled substance.
Due to the ambiguities and assumptions that can be made in these cases, it is essential that you hire an experienced drug defense attorney who can identify the gaps in the prosecution’s evidence and arguments.
Understanding North Carolina Drug Schedules
Drug Schedules dictate the penalties for various drug crimes based on the type of substance involved. In North Carolina, the schedules are determined by the North Carolina Commission for Mental Health, Developmental Disabilities and Substance Abuse Services (NCDHHS). Federally, drug schedules are set by the Drug Enforcement Administration (DEA), typically with review of medical and scientific evidence from the Food and Drug Administration (FDA). Federal drug schedules range from 1 to 5, where schedule 1 substances are considered to have the most potential for abuse and least or no valid medical use. North Carolina drug schedules 1 through 5 are mostly consistent with federal drug schedules, though North Carolina has an additional schedule 6. Schedule 6 in North Carolina is specifically for regulating Marijuana and its main psychoactive compound, THC, which the federal drug schedules currently regulate as schedule 1 substances.
Drug schedules for both North Carolina and the federal government are as follows, with discrepancies noted with an *asterisk:
Controlled substances are designated as schedule 1 if they have been determined to:
- Have high potential for abuse; and
- No currently accepted medical use in the United States, or a lack of accepted safety for use in treatment under medical supervision.
They include: Heroin, MDMA (Ecstasy), Psilocybin (from “Magic Mushrooms”), Mescaline (from Peyote), Dimethyltryptamine (DMT), Methaqualone (“Quaaludes”), Lysergic Acid Diethylamide (LSD), *Marijuana
*Marijuana is a schedule 1 drug federally, but a schedule 6 drug in North Carolina.
Controlled substances are designated as schedule 2 if they have been determined to:
- Have a high potential for abuse; and
- Currently accepted medical use in the united states with severe restrictions; and
- Abuse may lead to severe psychic or physical dependence.
They include: codeine, morphine, oxycodone, fentanyl, methadone, amphetamine, methamphetamine (“Crystal Meth”), cocaine, phencyclidine (PCP)
Controlled substances are designated as schedule 3 if they have been determined to:
- lower potential for abuse relative to substances in schedule II and I
- Currently accepted medical use in the united states
- may lead to moderate or low physical dependence or high psychological dependence
They include: ketamine, anabolic steroids, testosterones, products with more than 90mg of codeine per dosage unit (e.g. Tylenol with codeine)
Controlled substances are designated as schedule 4 if they have been determined to:
- lower potential for abuse relative to substance in schedule III
- Currently accepted medical use in the united states
- may lead to limited physical or psychological dependence relative to schedule III substances
They include: Alprazolam (Xanax), Diazepam (Valium), Zolpidem (Ambien), Flunitrazepam (Rohypnol), some narcotic pain relievers which contain opioid overdose reversal medications (e.g. Talwin which contains Naloxone)
Controlled substances are designated as schedule 5 if they have been determined to:
- Have low potential for abuse relative to schedule 4 drugs
- Currently accepted medical use in the united states
- Limited physical or psychological dependence
They include: preparations that include some amount of narcotics, such as over-the-counter cough syrups with small doses of codeine.
*Federal laws do not have a schedule 6, but North Carolina has it specifically for marijuana and its main psychoactive compound THC.
Schedule 6 drugs in North Carolina have:
- low potential for abuse nor risk to public health
- some potential to produce psychic or physiological dependence
no currently accepted medical use within the United States, or need for further and continuing study to develop the scientific evidence of its pharmacological effects.
There are exceptions where THC is legal in accordance with N.C.G.S § 90-94.1, where extract with THC less than 0.9% and no other psychoactive substances, for the use in treatment of epilepsy. This makes it legal for a patient with such prescription or their caregiver to be in possession of the extract, so long as they follow guidelines for disposal.
Drug Distribution and Manufacturing Penalties in North Carolina
While the facts of the case related to production and distribution or intent to do so are important for trial proceedings, the penalty outcome does not distinguish between any of these actions. In essence, the penalties only account for the type of drug(s) involved, their quantities, the defendant’s prior convictions, and potentially where and with whom the crime was committed. These crimes are mostly addressed under N.C.G.S § 5-90-95(a)(1), with penalties primarily issued based on the drug’s schedule as follows:
Schedules I and II: Conviction is punished by a class H felony, with the exceptions:
- The sale of a schedule I or II substance is punished with a class G felony
- The manufacture of methamphetamine is punished by a class C felony, unless it only involved packaging, repackaging, labeling or relabeling of the methamphetamine container, which is punished by a class H felony.
Schedules III, IV, V or VI: Conviction is punished by a by a Class I felony with the exceptions:
- The sale of a controlled substance in these schedules is punished as a class h felony .
- Transfer of less than 5 grams of marijuana to another person for no payment in return does not constitute a delivery and therefore does not violate this law.
Additional Distribution and Manufacturing Charges
There are additional charges for unique aspects of manufacturing and distributing drugs, including:
- Counterfeit controlled substances: the creation, sale, delivery or possession with intent to sell or deliver of a counterfeit controlled substance is punished with a class I felony.
- Precursor Chemicals: possessing or distributing an immediate precursor chemical for a controlled substance with the intent to manufacture the drug is punished with a class F felony.
- Possession of pseudoephedrine: If a person has any prior drug crime conviction involving methamphetamine from any jurisdiction in the United States, it is a crime for them to be in possession of pseudoephedrine punished with a class H felony. Possession or distribution of pseudoephedrine by anybody with the intent to manufacture methamphetamine or knowing it would be used to manufacture methamphetamine is punished with a Class F felony.
Prior Convictions and Other Circumstances
If previously convicted of a drug crime that is punished in North Carolina, whether the conviction took place in North Carolina, federal court or any other state, the above penalties can increase:
- A Class 1 misdemeanor conviction increases to a Class I Felony conviction
- A Class 2 misdemeanor conviction increases to a Class 1 misdemeanor conviction.
Some circumstances, such as the location the crime was committed or the kind of people you involved in the crime can increase the penalties, including:
- Selling or Delivering to Minors and Pregnant Woman: Any person 18 years old or older who sells or delivers a controlled substance to a person under 16 years but over 13 years old or a pregnant female is guilty of a class D felony if convicted. If the sale or delivery was made to someone 13 years old or younger, they will be guilty of a class C felony if convicted. Mistaking the person’s age or pregnancy is not a valid defense.
- Drug Operations on or Near School or Childcare Facilities and Public Parks: Any person 21 years old or older who commits a manufacturing or distribution drug offense on property used for a child care center, elementary school, secondary school or public park, or within 1,000 feet of any of these properties, will be guilty of a class E felony if convicted.
- Employing Minors in Drug Crimes: Any person over 18 who hires or intentionally uses a minor in a manufacturing or distribution drug crime is guilty of a felony if convicted. These offenses largely result in conviction of a higher felony class than what the minor violated. The number of increases in felony classes depends on whether the minor was over or under 13 years old and if the defendant was over or under 21 years old.
- Promoting Drug Sales by Minors: While not as serious as employing or intentionally using minors to create or sell drugs, enticing, supervising, encouraging or otherwise facilitating a minor in committing these crimes is punished by a class D felony if convicted.
- Purchasing Drugs from a Minor: Purchasing or receiving drugs from a minor aged 13 or younger is punished by a Class G felony if convicted. Mistaking the age of the minor is not a valid defense.
Federal Penalties for Drug Distribution and Manufacturing
While Federal prosecutors are generally most interested in going after drug large scale distribution and manufacturing cases that would constitute drug trafficking, it is still a federal crime to illegally manufacture and distribute controlled substances at any scale. Like in North Carolina law, whether you manufacture or distribute drugs or only possess drugs with the intention or conspiracy to do so, the penalty is the same. Also like in North Carolina law, the penalties are largely based on the drug’s schedule and quantities. This is followed by prior convictions and various aggravating circumstances such as distributing to minors or having a recipient of the drugs die from an overdose. Federal penalties for distribution and manufacturing drugs are mostly addressed under 21 U.S.C § 841, with penalties as follows:
Schedules I and II: First-time offenders can face up to 20 years in prison and a maximum fine of $1,000,000. Offenders with prior felony drug convictions can face up to 30 years in prison and a maximum fine of $2,000,0000. An exception applies to marijuana, which is:
- 50 kilograms or less of marijuana, or less than 50 marijuana plants, or less than 10 kilograms of hashish or less than 1 kilogram hashish oil will result in not more than 5 years in prison and a fine no more than $250,000.
Schedule III: First-time offenders can face up to 10 years in prison and a maximum fine of $500,000. Offenders with prior felony drug convictions can face up to 20 years in prison and a maximum fine of $1,000,0000.
Schedule IV: First-time offenders can face up to 5 years in prison and a maximum fine of $250,000. Offenders with prior felony drug convictions can face up to 10 years in prison and a maximum fine of $500,000.
Schedule V: First-time offenders can face up to 1 year in prison and a maximum fine of $100,000. Offenders with prior felony drug convictions can face up to 4 years in prison and a maximum fine of $200,000.
Excess Drug Quantity Penalties
Federal statute does not separate manufacturing and distribution charges from drug trafficking charges, though like in North Carolina law, the possession, distribution, or manufacturing of drugs in excess of certain quantities will result in much harsher penalties. These harsher penalties apply with drugs in excess of certain quantities, including:
- 100 grams or more of heroin or a substance derived from or containing heroin.
- 500 grams or more of cocaine or a derivative substance from cocaine.
- 10 grams or more of PCP, or 100 gram or more of a mixture with detectable amount of PCP
- 1 gram or more of LSD or a substance with detectable LSD
- 100 kilograms or more of marijuana or a substance containing detectable marijuana, or 100 marijuana plants or more (regardless of weight)
- 5 grams or more of methamphetamine or its derivatives.
Additional Circumstances Leading to Penalties
Like in North Carolina law, there are additional circumstances that can increase the sentencing, including committing drug manufacturing and distribution crimes:
- At a truck stop or safety rest area (21 U.S.C § 849)
- Involving a person under age 21 (21 U.S.C § 859)
- At or near a school or college (21 U.S.C § 860)
- Through employing minors (21 U.S.C § 861)
Most of these additional crimes can result in doubling the maximum punishment for a first-offense, and even tripling the punishment for repeat offenders.
Understanding Concurrent Jurisdiction in Drug Crimes
The federal government has concurrent jurisdiction with all states, which means you can be prosecuted in both federal and state court for the same drug offense. This does not violate the double jeopardy clause in the fifth amendment of the federal constitution, which states that you cannot be prosecuted twice for the same crime by the same sovereign entity. This is because state and federal governments are essentially separate government entities. However, the federal court has the doctrine of preemption, meaning that federal law can impede state law in circumstances where they conflict.
While an offense has potential to be tried in both courts, this does not mean that every state drug offense will reach the federal government, or that a federal charge will also result in state charges. Typically, the federal government and state governments have different priorities for drug enforcement, such as the federal government often looking for bigger cases involving interstate or multi-state operations. However, you should be aware that there still are cases where people face both state and federal prosecution for simple possession offenses. Whether facing state, federal or both charges, it is critical that you contact an attorney skilled at tackling all kinds of drug charges at both a state and federal level. The attorneys at Tarlton Polk have handled many drug cases in state and federal court, so we know how to navigate these complex cases with prowess.
Defending Drug Distribution and Manufacturing Charges
As there are many factors involved in drug crimes, they need to be approached carefully by your attorney to tackle the weak aspects of the prosecution’s case without overreaching and undermining the credibility of the defense. While every case is different, some areas a skilled lawyer can target are:
Argue you did not Intend to Manufacture or Distribute
In cases where you are only being charged with attempt or conspiracy, the burden of proof is on the prosecution to show that you intended to distribute or manufacture. A skilled lawyer can demonstrate to the court that you were only in possession of the drugs for personal use, which carries lighter penalties. This defense, however, may not hold well for possession of very large quantities of drugs that would constitute trafficking, especially under North Carolina law.
Argue the Search was Unconstitutional
The Fourth Amendment protects against “unreasonable” searches and seizures. Generally, police need a search warrant to search your home, which must be supported by probable cause. Since getting a search warrant isn’t always practicable, police can also search you on the street if they have probable cause that you have or are about to participate in a crime.
Often, the police do not have probable cause, which must be more than a hunch or guess. Instead, officers routinely search people based solely on suspicions and little else, which makes the search illegal. You can suppress any drugs found in an illegal search, which will prevent the prosecutor from introducing them into evidence.
Of course, there are some exceptions to the warrant requirement. If the drugs are in plain view, sitting on your passenger seat, then the police can seize them. Police can also enter your home if they are in hot pursuit. Your lawyer can review the circumstances surrounding the search and seizure to make sure the police complied with your constitutional rights.
Argue that you Faced Entrapment
Entrapment means that you were tricked into committing a crime to secure law enforcement’s prosecution. This only works under very specific circumstances, and essentially requires that you admit to committing the crime, but can significantly reduce charges.
Speak with a North Carolina Criminal Defense Attorney
It is important to recognize that not all these approaches are applicable to every case, and misuse of any of the above defenses could harm the credibility of the defense. Our lawyers at Tarlton Polk are skilled at devising the most effective defense strategy and know how to stick to it credibly while still readily adapting to changes as the case develops. If you or a loved one has been arrested for drug possession, you need to begin building your defense immediately, please call us today.