§ 90-95. Violations; penalties.

NORTH CAROLINA STATUTES AND CODES

§ 90‑95. Violations;penalties.

(a) Except asauthorized by this Article, it is unlawful for any person:

(1) To manufacture, sellor deliver, or possess with intent to manufacture, sell or deliver, acontrolled substance;

(2) To create, sell ordeliver, or possess with intent to sell or deliver, a counterfeit controlledsubstance;

(3) To possess acontrolled substance.

(b) Except as providedin subsections (h) and (i) of this section, any person who violates G.S. 90‑95(a)(1)with respect to:

(1) A controlledsubstance classified in Schedule I or II shall be punished as a Class H felon,except as follows: (i) the sale of a controlled substance classified inSchedule I or II shall be punished as a Class G felony, and (ii) themanufacture of methamphetamine shall be punished as provided by subdivision(1a) of this subsection.

(1a) The manufacture ofmethamphetamine shall be punished as a Class C felony unless the offense wasone of the following: packaging or repackaging methamphetamine, or labeling orrelabeling the methamphetamine container. The offense of packaging orrepackaging methamphetamine, or labeling or relabeling the methamphetaminecontainer shall be punished as a Class H felony.

(2) A controlledsubstance classified in Schedule III, IV, V, or VI shall be punished as a ClassI felon, except that the sale of a controlled substance classified in ScheduleIII, IV, V, or VI shall be punished as a Class H felon. The transfer of lessthan 5 grams of marijuana for no remuneration shall not constitute a deliveryin violation of G.S. 90‑95(a)(1).

(d) Except as providedin subsections (h) and (i) of this section, any person who violates G.S. 90‑95(a)(3)with respect to:

(1) A controlledsubstance classified in Schedule I shall be punished as a Class I felon;

(2) A controlledsubstance classified in Schedule II, III, or IV shall be guilty of a Class 1misdemeanor. If the controlled substance exceeds four tablets, capsules, orother dosage units or equivalent quantity of hydromorphone or if the quantityof the controlled substance, or combination of the controlled substances,exceeds one hundred tablets, capsules or other dosage units, or equivalentquantity, the violation shall be punishable as a Class I felony. If thecontrolled substance is methamphetamine, amphetamine, phencyclidine, or cocaineand any salt, isomer, salts of isomers, compound, derivative, or preparationthereof, or coca leaves and any salt, isomer, salts of isomers, compound,derivative, or preparation of coca leaves, or any salt, isomer, salts ofisomers, compound, derivative or preparation thereof which is chemicallyequivalent or identical with any of these substances (except decocanized cocaleaves or any extraction of coca leaves which does not contain cocaine orecgonine), the violation shall be punishable as a Class I felony.

(3) A controlledsubstance classified in Schedule V shall be guilty of a Class 2 misdemeanor;

(4) A controlledsubstance classified in Schedule VI shall be guilty of a Class 3 misdemeanor,but any sentence of imprisonment imposed must be suspended and the judge maynot require at the time of sentencing that the defendant serve a period ofimprisonment as a special condition of probation. If the quantity of thecontrolled substance exceeds one‑half of an ounce (avoirdupois) ofmarijuana or one‑twentieth of an ounce (avoirdupois) of the extractedresin of marijuana, commonly known as hashish, the violation shall bepunishable as a Class 1 misdemeanor. If the quantity of the controlledsubstance exceeds one and one‑half ounces (avoirdupois) of marijuana orthree‑twentieths of an ounce (avoirdupois) of the extracted resin ofmarijuana, commonly known as hashish, or if the controlled substance consistsof any quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinolsisolated from the resin of marijuana, the violation shall be punishable as aClass I felony.

(d1) (1) Exceptas authorized by this Article, it is unlawful for any person to:

a. Possess an immediateprecursor chemical with intent to manufacture a controlled substance; or

b. Possess ordistribute an immediate precursor chemical knowing, or having reasonable causeto believe, that the immediate precursor chemical will be used to manufacture acontrolled substance.

Any person who violates thissubsection shall be punished as a Class H felon, unless the immediate precursoris one that can be used to manufacture methamphetamine.

(2) Except as authorizedby this Article, it is unlawful for any person to:

a. Possess an immediateprecursor chemical with intent to manufacture methamphetamine; or

b. Possess ordistribute an immediate precursor chemical knowing, or having reasonable causeto believe, that the immediate precursor chemical will be used to manufacturemethamphetamine.

Any person who violates thissubdivision shall be punished as a Class F felon.

(d2) The immediateprecursor chemicals to which subsection (d1) and (d1a) of this section appliesare those immediate precursor chemicals designated by the Commission pursuantto its authority under G.S. 90‑88, and the following (until otherwisespecified by the Commission):

(1) Acetic anhydride.

(2) Acetone.

(3) Anhydrous ammonia.

(4) Anthranilic acid.

(5) Benzyl chloride.

(6) Benzyl cyanide.

(7) 2‑Butanone(Methyl Ethyl Ketone).

(8) Chloroephedrine.

(9) Chloropseudoephedrine.

(10) D‑lysergicacid.

(11) Ephedrine.

(12) Ergonovine maleate.

(13) Ergotamine tartrate.

(14) Ethyl ether.

(15) Ethyl Malonate.

(16) Ethylamine.

(17) Gamma‑butyrolactone.

(18) Hydrochloric Acid.

(19) Iodine.

(20) Isosafrole.

(21) Lithium.

(22) Malonic acid.

(23) Methylamine.

(24) Methyl IsobutylKetone.

(25) N‑acetylanthranilicacid.

(26) N‑ethylephedrine.

(27) N‑ethylepseudoephedrine.

(28) N‑methylephedrine.

(29) N‑methylpseudoephedrine.

(30) Norpseudoephedrine.

(31) Phenyl‑2‑propane.

(32) Phenylacetic acid.

(33) Phenylpropanolamine.

(34) Piperidine.

(35) Piperonal.

(36) Propionic anhydride.

(37) Pseudoephedrine.

(38) Pyrrolidine.

(39) Red phosphorous.

(40) Safrole.

(41) Sodium.

(42) Sulfuric Acid.

(43) Tetrachloroethylene.

(44) Thionylchloride.

(45) Toluene.

(e) The prescribedpunishment and degree of any offense under this Article shall be subject to thefollowing conditions, but the punishment for an offense may be increased onlyby the maximum authorized under any one of the applicable conditions:

(1), (2) Repealed bySession Laws 1979, c. 760, s. 5.

(3) If any personcommits a Class 1 misdemeanor under this Article and if he has previously beenconvicted for one or more offenses under any law of North Carolina or any lawof the United States or any other state, which offenses are punishable underany provision of this Article, he shall be punished as a Class I felon. Theprior conviction used to raise the current offense to a Class I felony shallnot be used to calculate the prior record level.

(4) If any personcommits a Class 2 misdemeanor, and if he has previously been convicted for oneor more offenses under any law of North Carolina or any law of the United Statesor any other state, which offenses are punishable under any provision of thisArticle, he shall be guilty of a Class 1 misdemeanor. The prior conviction usedto raise the current offense to a Class 1 misdemeanor shall not be used tocalculate the prior conviction level.

(5) Any person 18 yearsof age or over who violates G.S. 90‑95(a)(1) by selling or delivering acontrolled substance to a person under 16 years of age but more than 13 yearsof age or a pregnant female shall be punished as a Class D felon. Any person 18years of age or over who violates G.S. 90‑95(a)(1) by selling ordelivering a controlled substance to a person who is 13 years of age or youngershall be punished as a Class C felon. Mistake of age is not a defense to aprosecution under this section. It shall not be a defense that the defendantdid not know that the recipient was pregnant.

(6) For the purpose ofincreasing punishment under G.S. 90‑95(e)(3) and (e)(4), previousconvictions for offenses shall be counted by the number of separate trials atwhich final convictions were obtained and not by the number of charges at asingle trial.

(7) If any personcommits an offense under this Article for which the prescribed punishmentrequires that any sentence of imprisonment be suspended, and if he haspreviously been convicted for one or more offenses under any law of NorthCarolina or any law of the United States or any other state, which offenses arepunishable under any provision of this Article, he shall be guilty of a Class 2misdemeanor.

(8) Any person 21 yearsof age or older who commits an offense under G.S. 90‑95(a)(1) on propertyused for a child care center, or for an elementary or secondary school orwithin 1,000 feet of the boundary of real property used for a child care center,or for an elementary or secondary school shall be punished as a Class E felon.For purposes of this subdivision, the transfer of less than five grams ofmarijuana for no remuneration shall not constitute a delivery in violation ofG.S. 90‑95(a)(1). For purposes of this subdivision, a child care centeris as defined in G.S. 110‑86(3)a., and that is licensed by the Secretaryof the Department of Health and Human Services.

(9) Any person whoviolates G.S. 90‑95(a)(3) on the premises of a penal institution or localconfinement facility shall be guilty of a Class H felony.

(10) Any person 21 yearsof age or older who commits an offense under G.S. 90‑95(a)(1) on propertythat is a public park or within 1,000 feet of the boundary of real propertythat is a public park shall be punished as a Class E felon. For purposes ofthis subdivision, the transfer of less than five grams of marijuana for noremuneration shall not constitute a delivery in violation of G.S. 90‑95(a)(1).

(f) Any personconvicted of an offense or offenses under this Article who is sentenced to anactive term of imprisonment that is less than the maximum active term thatcould have been imposed may, in addition, be sentenced to a term of specialprobation. Except as indicated in this subsection, the administration ofspecial probation shall be the same as probation. The conditions of specialprobation shall be fixed in the same manner as probation, and the conditionsmay include requirements for rehabilitation treatment. Special probation shallfollow the active sentence. No term of special probation shall exceed fiveyears. Special probation may be revoked in the same manner as probation; uponrevocation, the original term of imprisonment may be increased by no more thanthe difference between the active term of imprisonment actually served and themaximum active term that could have been imposed at trial for the offense oroffenses for which the person was convicted, and the resulting term ofimprisonment need not be diminished by the time spent on special probation.

(g) Whenever matter issubmitted to the North Carolina State Bureau of Investigation Laboratory, theCharlotte, North Carolina, Police Department Laboratory or to the ToxicologyLaboratory, Reynolds Health Center, Winston‑Salem for chemical analysisto determine if the matter is or contains a controlled substance, the report ofthat analysis certified to upon a form approved by the Attorney General by theperson performing the analysis shall be admissible without furtherauthentication and without the testimony of the analyst in all proceedings inthe district court and superior court divisions of the General Court of Justiceas evidence of the identity, nature, and quantity of the matter analyzed.Provided, however, the provisions of this subsection may be utilized by theState only if:

(1) The State notifiesthe defendant at least 15 business days before the proceeding at which thereport would be used of its intention to introduce the report into evidenceunder this subsection and provides a copy of the report to the defendant, and

(2) The defendant failsto file a written objection with the court, with a copy to the State, at leastfive business days before the proceeding that the defendant objects to theintroduction of the report into evidence.

If the defendant's attorney ofrecord, or the defendant if that person has no attorney, fails to file awritten objection as provided in this subsection, then the report may beadmitted into evidence without the testimony of the analyst. Upon filing atimely objection, the admissibility of the report shall be determined andgoverned by the appropriate rules of evidence.

Nothing in this subsectionprecludes the right of any party to call any witness or to introduce anyevidence supporting or contradicting the evidence contained in the report.

(g1) Procedure forestablishing chain of custody without calling unnecessary witnesses.

(1) For the purpose ofestablishing the chain of physical custody or control of evidence consisting ofor containing a substance tested or analyzed to determine whether it is acontrolled substance, a statement signed by each successive person in the chainof custody that the person delivered it to the other person indicated on orabout the date stated is prima facie evidence that the person had custody andmade the delivery as stated, without the necessity of a personal appearance incourt by the person signing the statement.

(2) The statement shallcontain a sufficient description of the material or its container so as to distinguishit as the particular item in question and shall state that the material wasdelivered in essentially the same condition as received. The statement may beplaced on the same document as the report provided for in subsection (g) ofthis section.

(3) The provisions ofthis subsection may be utilized by the State only if:

a. The State notifiesthe defendant at least 15 days before trial of its intention to introduce thestatement into evidence under this subsection and provides the defendant with acopy of the statement, and

b. The defendant failsto notify the State at least five days before trial that the defendant objectsto the introduction of the statement into evidence.

(4) Nothing in thissubsection precludes the right of any party to call any witness or to introduceany evidence supporting or contradicting the evidence contained in thestatement.

(h) Notwithstanding anyother provision of law, the following provisions apply except as otherwiseprovided in this Article.

(1) Any person who sells,manufactures, delivers, transports, or possesses in excess of 10 pounds(avoirdupois) of marijuana shall be guilty of a felony which felony shall beknown as "trafficking in marijuana" and if the quantity of suchsubstance involved:

a. Is in excess of 10pounds, but less than 50 pounds, such person shall be punished as a Class Hfelon and shall be sentenced to a minimum term of 25 months and a maximum termof 30 months in the State's prison and shall be fined not less than fivethousand dollars ($5,000);

b. Is 50 pounds ormore, but less than 2,000 pounds, such person shall be punished as a Class Gfelon and shall be sentenced to a minimum term of 35 months and a maximum termof 42 months in the State's prison and shall be fined not less than twenty‑fivethousand dollars ($25,000);

c. Is 2,000 pounds ormore, but less than 10,000 pounds, such person shall be punished as a Class Ffelon and shall be sentenced to a minimum term of 70 months and a maximum termof 84 months in the State's prison and shall be fined not less than fiftythousand dollars ($50,000);

d. Is 10,000 pounds ormore, such person shall be punished as a Class D felon and shall be sentencedto a minimum term of 175 months and a maximum term of 219 months in the State'sprison and shall be fined not less than two hundred thousand dollars($200,000).

(2) Any person whosells, manufactures, delivers, transports, or possesses 1,000 tablets, capsulesor other dosage units, or the equivalent quantity, or more of methaqualone, orany mixture containing such substance, shall be guilty of a felony which felonyshall be known as "trafficking in methaqualone" and if the quantityof such substance or mixture involved:

a. Is 1,000 or moredosage units, or equivalent quantity, but less than 5,000 dosage units, orequivalent quantity, such person shall be punished as a Class G felon and shallbe sentenced to a minimum term of 35 months and a maximum term of 42 months inthe State's prison and shall be fined not less than twenty‑five thousanddollars ($25,000);

b. Is 5,000 or moredosage units, or equivalent quantity, but less than 10,000 dosage units, orequivalent quantity, such person shall be punished as a Class F felon and shallbe sentenced to a minimum term of 70 months and a maximum term of 84 months in theState's prison and shall be fined not less than fifty thousand dollars($50,000);

c. Is 10,000 or moredosage units, or equivalent quantity, such person shall be punished as a ClassD felon and shall be sentenced to a minimum term of 175 months and a maximumterm of 219 months in the State's prison and shall be fined not less than twohundred thousand dollars ($200,000).

(3) Any person whosells, manufactures, delivers, transports, or possesses 28 grams or more ofcocaine and any salt, isomer, salts of isomers, compound, derivative, orpreparation thereof, or any coca leaves and any salt, isomer, salts of isomers,compound, derivative, or preparation of coca leaves, and any salt, isomer,salts of isomers, compound, derivative or preparation thereof which ischemically equivalent or identical with any of these substances (exceptdecocainized coca leaves or any extraction of coca leaves which does notcontain cocaine) or any mixture containing such substances, shall be guilty ofa felony, which felony shall be known as "trafficking in cocaine" andif the quantity of such substance or mixture involved:

a. Is 28 grams or more,but less than 200 grams, such person shall be punished as a Class G felon andshall be sentenced to a minimum term of 35 months and a maximum term of 42months in the State's prison and shall be fined not less than fifty thousanddollars ($50,000);

b. Is 200 grams ormore, but less than 400 grams, such person shall be punished as a Class F felonand shall be sentenced to a minimum term of 70 months and a maximum term of 84months in the State's prison and shall be fined not less than one hundredthousand dollars ($100,000);

c. Is 400 grams ormore, such person shall be punished as a Class D felon and shall be sentencedto a minimum term of 175 months and a maximum term of 219 months in the State'sprison and shall be fined at least two hundred fifty thousand dollars($250,000).

(3a) Repealed by SessionLaws 1999‑370, s. 1, effective December 1, 1999.

(3b) Any person who sells,manufactures, delivers, transports, or possesses 28 grams or more ofmethamphetamine or any mixture containing such substance shall be guilty of afelony which felony shall be known as "trafficking inmethamphetamine" and if the quantity of such substance or mixture involved:

a. Is 28 grams or more,but less than 200 grams, such person shall be punished as a Class F felon andshall be sentenced to a minimum term of 70 months and a maximum term of 84months in the State's prison and shall be fined not less than fifty thousanddollars ($50,000);

b. Is 200 grams ormore, but less than 400 grams, such person shall be punished as a Class E felonand shall be sentenced to a minimum term of 90 months and a maximum term of 117months in the State's prison and shall be fined not less than one hundredthousand dollars ($100,000);

c. Is 400 grams ormore, such person shall be punished as a Class C felon and shall be sentencedto a minimum term of 225 months and a maximum term of 279 months in the State'sprison and shall be fined at least two hundred fifty thousand dollars($250,000).

(3c) Any person who sells,manufactures, delivers, transports, or possesses 28 grams or more ofamphetamine or any mixture containing such substance shall be guilty of afelony, which felony shall be known as "trafficking in amphetamine",and if the quantity of such substance or mixture involved:

a. Is 28 grams or more,but less than 200 grams, such person shall be punished as a Class H felon andshall be sentenced to a minimum term of 25 months and a maximum term of 30months in the State's prison and shall be fined not less than five thousanddollars ($5,000);

b. Is 200 grams ormore, but less than 400 grams, such person shall be punished as a Class G felonand shall be sentenced to a minimum term of 35 months and a maximum term of 42months in the State's prison and shall be fined not less than twenty‑fivethousand dollars ($25,000);

c. Is 400 grams ormore, such person shall be punished as a Class E felon and shall be sentencedto a minimum term of 90 months and a maximum term of 117 months in the State'sprison and shall be fined at least one hundred thousand dollars ($100,000).

(4) Any person whosells, manufactures, delivers, transports, or possesses four grams or more ofopium or opiate, or any salt, compound, derivative, or preparation of opium oropiate (except apomorphine, nalbuphine, analoxone and naltrexone and theirrespective salts), including heroin, or any mixture containing such substance,shall be guilty of a felony which felony shall be known as "trafficking inopium or heroin" and if the quantity of such controlled substance ormixture involved:

a. Is four grams ormore, but less than 14 grams, such person shall be punished as a Class F felonand shall be sentenced to a minimum term of 70 months and a maximum term of 84months in the State's prison and shall be fined not less than fifty thousanddollars ($50,000);

b. Is 14 grams or more,but less than 28 grams, such person shall be punished as a Class E felon andshall be sentenced to a minimum term of 90 months and a maximum term of 117months in the State's prison and shall be fined not less than one hundredthousand dollars ($100,000);

c. Is 28 grams or more,such person shall be punished as a Class C felon and shall be sentenced to a minimumterm of 225 months and a maximum term of 279 months in the State's prison andshall be fined not less than five hundred thousand dollars ($500,000).

(4a) Any person who sells,manufactures, delivers, transports, or possesses 100 tablets, capsules, orother dosage units, or the equivalent quantity, or more, of Lysergic AcidDiethylamide, or any mixture containing such substance, shall be guilty of afelony, which felony shall be known as "trafficking in Lysergic AcidDiethylamide". If the quantity of such substance or mixture involved:

a. Is 100 or moredosage units, or equivalent quantity, but less than 500 dosage units, orequivalent quantity, such person shall be punished as a Class G felon and shallbe sentenced to a minimum term of 35 months and a maximum term of 42 months inthe State's prison and shall be fined not less than twenty‑five thousanddollars ($25,000);

b. Is 500 or moredosage units, or equivalent quantity, but less than 1,000 dosage units, orequivalent quantity, such person shall be punished as a Class F felon and shallbe sentenced to a minimum term of 70 months and a maximum term of 84 months inthe State's prison and shall be fined not less than fifty thousand dollars($50,000);

c. Is 1,000 or moredosage units, or equivalent quantity, such person shall be punished as a ClassD felon and shall be sentenced to a minimum term of 175 months and a maximumterm of 219 months in the State's prison and shall be fined not less than twohundred thousand dollars ($200,000).

(4b) Any person who sells,manufactures, delivers, transports, or possesses 100 or more tablets, capsules,or other dosage units, or 28 grams or more of 3,4‑methylenedioxyamphetamine(MDA), including its salts, isomers, and salts of isomers, or 3,4‑methylenedioxymethamphetamine(MDMA), including its salts, isomers, and salts of isomers, or any mixturecontaining such substances, shall be guilty of a felony, which felony shall beknown as "trafficking in MDADMA." If the quantity of the substance ormixture involved:

a. Is 100 or moretablets, capsules, or other dosage units, but less than 500 tablets, capsules,or other dosage units, or 28 grams or more, but less than 200 grams, the personshall be punished as a Class G felon and shall be sentenced to a minimum termof 35 months and a maximum term of 42 months in the State's prison and shall befined not less than twenty‑five thousand dollars ($25,000);

b. Is 500 or moretablets, capsules, or other dosage units, but less than 1,000 tablets,capsules, or other dosage units, or 200 grams or more, but less than 400 grams,the person shall be punished as a Class F felon and shall be sentenced to aminimum term of 70 months and a maximum term of 84 months in the State's prisonand shall be fined not less than fifty thousand dollars ($50,000);

c. Is 1,000 or moretablets, capsules, or other dosage units, or 400 grams or more, the personshall be punished as a Class D felon and shall be sentenced to a minimum termof 175 months and a maximum term of 219 months in the State's prison and shallbe fined not less than two hundred fifty thousand dollars ($250,000).

(5) Except as providedin this subdivision, a person being sentenced under this subsection may notreceive a suspended sentence or be placed on probation. The sentencing judgemay reduce the fine, or impose a prison term less than the applicable minimumprison term provided by this subsection, or suspend the prison term imposed andplace a person on probation when such person has, to the best of his knowledge,provided substantial assistance in the identification, arrest, or conviction ofany accomplices, accessories, co‑conspirators, or principals if thesentencing judge enters in the record a finding that the person to be sentencedhas rendered such substantial assistance.

(6) Sentences imposedpursuant to this subsection shall run consecutively with and shall commence atthe expiration of any sentence being served by the person sentenced hereunder.

(i) The penaltiesprovided in subsection (h) of this section shall also apply to any person whois convicted of conspiracy to commit any of the offenses described insubsection (h) of this section. (1971, c. 919, s. 1; 1973, c. 654, s. 1; c. 1078; c.1358, s. 10; 1975, c. 360, s. 2; 1977, c. 862, ss. 1, 2; 1979, c. 760, s. 5;1979, 2nd Sess., c. 1251, ss. 4‑7; 1983, c. 18; c. 294, s. 6; c. 414;1985, c. 569, s. 1; c. 675, ss. 1, 2; 1987, c. 90; c. 105, ss. 4, 5; c. 640,ss. 1, 2; c. 783, s. 4; 1989, c. 641; c. 672; c. 690; c. 770, s. 68; 1989 (Reg.Sess., 1990), c. 1024, s. 17; c. 1039, s. 5; c. 1081, s. 2; 1991, c. 484, s. 1;1993, c. 538, s. 30; c. 539, s. 1358.1; 1994, Ex. Sess., c. 11, s. 1; c. 14,ss. 46, 47; c. 24, s. 14(b); 1996, 2nd Ex. Sess., c. 18, s. 20.13(c); 1997‑304,ss. 1, 2; 1997‑443, s. 19.25(b), (u), (ii); 1998‑212, s. 17.16(e);1999‑165, s. 4; 1999‑370, s. 1; 2000‑140, s. 92.2(d); 2001‑307,s. 1; 2001‑332, s. 1; 2004‑178, ss. 3, 4, 5, 6; 2007‑375, s.1; 2009‑463, ss. 1, 2; 2009‑473, s. 7.)