Duncan A. McMillan
Chapter 90 of the North Carolina General Statutes addresses controlled substance violations. NCGS 90-95 lays out the various offenses and offense classifications.
For first offense misdemeanor violations, and for certain first offense low grade felony violations, a deferred prosecution is available. NCGS 90-96 provides the statutory authorization for the drug diversion programs. Those programs are managed under the supervision of “Southlight, Inc.” formerly DRUG ACTION OF WAKE COUNTY. Participation in the deferred prosecution programs is subject to judicial discretion, and in some cases, subject to the prosecutor’s approval. Prosecutorial approval is dictated by policies related to drug schedules, drug quantities, and specific offense characteristics.
The “90-96” diversion programs offer a wonderful opportunity for first offenders to have minor drug charges dismissed, and the arrest records expunged. At the same time, however, the attraction of a guaranteed dismissal and potential for expungement often involves the sacrifice of legitimate factual and constitutional arguments. Many drug cases involve questionable police tactics and searches, and those accused must often make a decision between accepting a “sure thing” and asserting their rights to a trial. Each individual accused must make that decision for himself/herself, for the attorney can never know how a particular judge will rule in a particular case.
Every case is different, and the determining factor in the outcome, may be the slightest difference form established legal precedent. The determining factor may also be some quirk of the presiding judge, the demeanor of a witness, or the general Courtroom Karma.
Needless to say, minor, first offense drug violations are manageable. Even a misdemeanor conviction, though not desired, may be an outstanding result in a particular case. I have two dear friends who are outstanding attorneys who went to prison for drug violations while they were in college. A conviction is not the end of the world. Prison, though an end to be avoided, is not the end of the world.