North Carolina § 90-95 - Violations; penalties.

§ 90-95. Violations; penalties.

Except as authorized by this Article, it is unlawful for any person: To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance; To create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance; To possess a controlled substance. Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(1) with respect to: A controlled substance 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 in Schedule I or II shall be punished as a Class G felony, and (ii) the manufacture of methamphetamine shall be punished as provided by subdivision (1a) of this subsection. The manufacture of methamphetamine shall be punished as a Class C felony unless the offense was one of the following: packaging or repackaging methamphetamine, or labeling or relabeling the methamphetamine container. The offense of packaging or repackaging methamphetamine, or labeling or relabeling the methamphetamine container shall be punished as a Class H felony. A controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class I felon, except that the sale of a controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class H felon. The transfer of less than 5 grams of marijuana for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(1). Any person who violates G.S. 90-95(a)(2) shall be punished as a Class I felon. Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(3) with respect to: A controlled substance classified in Schedule I shall be punished as a Class I felon. However, if the controlled substance is MDPV and the quantity of the MDPV is 1 gram or less, the violation shall be punishable as a Class 1 misdemeanor. A controlled substance classified in Schedule II, III, or IV shall be guilty of a Class 1 misdemeanor. If the controlled substance exceeds four tablets, capsules, or other dosage units or equivalent quantity of hydromorphone or if the quantity of the controlled substance, or combination of the controlled substances, exceeds one hundred tablets, capsules or other dosage units, or equivalent quantity, the violation shall be punishable as a Class I felony. If the controlled substance is methamphetamine, amphetamine, phencyclidine, or cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof, or coca leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation of coca leaves, or any salt, isomer, salts of isomers, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances (except decocanized coca leaves or any extraction of coca leaves which does not contain cocaine or ecgonine), the violation shall be punishable as a Class I felony. A controlled substance classified in Schedule V shall be guilty of a Class 2 misdemeanor; A controlled substance classified in Schedule VI shall be guilty of a Class 3 misdemeanor, but any sentence of imprisonment imposed must be suspended and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation. If the quantity of the controlled substance exceeds one-half of an ounce (avoirdupois) of marijuana or one-twentieth of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, the violation shall be punishable as a Class 1 misdemeanor. If the quantity of the controlled substance exceeds one and one-half ounces (avoirdupois) of marijuana, or three-twentieths of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, or if the controlled substance consists of any quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from the resin of marijuana, the violation shall be punishable as a Class I felony. Possess an immediate precursor chemical with intent to manufacture a controlled substance; or Possess or distribute an immediate precursor chemical knowing, or having reasonable cause to believe, that the immediate precursor chemical will be used to manufacture a controlled substance; or Possess a pseudoephedrine product if the person has a prior conviction for the possession of methamphetamine, possession with the intent to sell or deliver methamphetamine, sell or deliver methamphetamine, trafficking methamphetamine, possession of an immediate precursor chemical, or manufacture of methamphetamine. The prior conviction may be from any jurisdiction within the United States. (1) Except as authorized by this Article, it is unlawful for any person to: The immediate precursor chemicals to which subsection (d1) of this section applies are those immediate precursor chemicals designated by the Commission pursuant to its authority under G.S. 90-88, and the following (until otherwise specified by the Commission): Acetic anhydride. Acetone. Ammonium nitrate. Ammonium sulfate. Anhydrous ammonia. Anthranilic acid. Benzyl chloride. Benzyl cyanide. 2-Butanone (Methyl Ethyl Ketone). Chloroephedrine. Chloropseudoephedrine. D-lysergic acid. Ephedrine. Ergonovine maleate. Ergotamine tartrate. Ether based starting fluids. Ethyl ether. Ethyl Malonate. Ethylamine. Gamma-butyrolactone. Hydrochloric Acid. (Muriatic Acid). Iodine. Isosafrole. Sources of lithium metal. Malonic acid. Methylamine. Methyl Isobutyl Ketone. N-acetylanthranilic acid. N-ethylephedrine. N-ethylepseudoephedrine. N-methylephedrine. N-methylpseudoephedrine. N-phenethyl-4-piperidinone (NPP). Norpseudoephedrine. Petroleum based organic solvents such as camping fuels and lighter fluids. Phenyl-2-propanone. Phenylacetic acid. Phenylpropanolamine. Piperidine. Piperonal. Propionic anhydride. Pseudoephedrine. Pyrrolidine. Red phosphorous. Safrole. Sodium hydroxide (Lye). Sources of sodium metal. Sulfuric Acid. Tetrachloroethylene. Thionylchloride. Toluene. The prescribed punishment and degree of any offense under this Article shall be subject to the following conditions, but the punishment for an offense may be increased only by the maximum authorized under any one of the applicable conditions: , (2) Repealed by Session Laws 1979, c. 760, s. 5. Any person convicted of an offense or offenses under this Article who is sentenced to an active term of imprisonment that is less than the maximum active term that could have been imposed may, in addition, be sentenced to a term of special probation. Except as indicated in this subsection, the administration of special probation shall be the same as probation. The conditions of special probation shall be fixed in the same manner as probation, and the conditions may include requirements for rehabilitation treatment. Special probation shall follow the active sentence. No term of special probation shall exceed five years. Special probation may be revoked in the same manner as probation; upon revocation, the original term of imprisonment may be increased by no more than the difference between the active term of imprisonment actually served and the maximum active term that could have been imposed at trial for the offense or offenses for which the person was convicted, and the resulting term of imprisonment need not be diminished by the time spent on special probation. Whenever matter is submitted to the North Carolina State Crime Laboratory, the Charlotte, North Carolina, Police Department Laboratory or to the Toxicology Laboratory, Reynolds Health Center, Winston-Salem for chemical analysis to determine if the matter is or contains a controlled substance, the report of that analysis certified to upon a form approved by the Attorney General by the person performing the analysis shall be admissible without further authentication and without the testimony of the analyst in all proceedings in the district court and superior court divisions of the General Court of Justice as evidence of the identity, nature, and quantity of the matter analyzed. Provided, however, the provisions of this subsection may be utilized by the State only if: The State notifies the defendant at least 15 business days before the proceeding at which the report would be used of its intention to introduce the report into evidence under this subsection and provides a copy of the report to the defendant, and The defendant fails to file a written objection with the court, with a copy to the State, at least five business days before the proceeding that the defendant objects to the introduction of the report into evidence. Procedure for establishing chain of custody without calling unnecessary witnesses. - For the purpose of establishing the chain of physical custody or control of evidence consisting of or containing a substance tested or analyzed to determine whether it is a controlled substance, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement. The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. The statement may be placed on the same document as the report provided for in subsection (g) of this section. The provisions of this subsection may be utilized by the State only if: The State notifies the defendant at least 15 days before trial of its intention to introduce the statement into evidence under this subsection and provides the defendant with a copy of the statement, and The defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the statement into evidence. Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement. Notwithstanding any other provision of law, the following provisions apply except as otherwise provided in this Article: 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 be known as "trafficking in marijuana" and if the quantity of such substance involved: Is in excess of 10 pounds, but less than 50 pounds, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 39 months in the State's prison and shall be fined not less than five thousand dollars ($5,000); Is 50 pounds or more, but less than 2,000 pounds, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000); Is 2,000 pounds or more, but less than 10,000 pounds, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 10,000 pounds or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000). For the purpose of this subsection, a "dosage unit" shall consist of 3 grams of synthetic cannabinoid or any mixture containing such substance. Any person who sells, manufactures, delivers, transports, or possesses in excess of 50 dosage units of a synthetic cannabinoid or any mixture containing such substance, shall be guilty of a felony, which felony shall be known as "trafficking in synthetic cannabinoids," and if the quantity of such substance involved: Is in excess of 50 dosage units, but less than 250 dosage units, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 39 months in the State's prison and shall be fined not less than five thousand dollars ($5,000); Is 250 dosage units or more, but less than 1250 dosage units, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000); Is 1250 dosage units or more, but less than 3750 dosage units, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 3750 dosage units or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000). Any person who sells, manufactures, delivers, transports, or possesses 1,000 tablets, capsules or other dosage units, or the equivalent quantity, or more of methaqualone, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as "trafficking in methaqualone" and if the quantity of such substance or mixture involved: Is 1,000 or more dosage units, or equivalent quantity, but less than 5,000 dosage units, or equivalent quantity, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000); Is 5,000 or more dosage units, or equivalent quantity, but less than 10,000 dosage units, or equivalent quantity, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 10,000 or more dosage units, or equivalent quantity, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000). Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation 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 is chemically equivalent or identical with any of these substances (except decocainized coca leaves or any extraction of coca leaves which does not contain cocaine) or any mixture containing such substances, shall be guilty of a felony, which felony shall be known as "trafficking in cocaine" and if the quantity of such substance or mixture involved: Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000); Is 400 grams or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000). Repealed by Session Laws 1999-370, s. 1, effective December 1, 1999. Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of methamphetamine or any mixture containing such substance shall be guilty of a felony which felony shall be known as "trafficking in methamphetamine" and if the quantity of such substance or mixture involved: Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000); Is 400 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000). Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of amphetamine or any mixture containing such substance shall be guilty of a felony, which felony shall be known as "trafficking in amphetamine", and if the quantity of such substance or mixture involved: Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 39 months in the State's prison and shall be fined not less than five thousand dollars ($5,000); Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000); Is 400 grams or more, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined at least one hundred thousand dollars ($100,000). Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of any substituted cathinone, as defined in G.S. 90-89(5)(j), or any mixture containing such substance shall be guilty of a felony, which felony shall be known as "trafficking in substituted cathinones," and if the quantity of such substance or mixture involved: Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000); Is 400 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000). Repealed by Session Laws 2018-44, s. 7, effective December 1, 2018. Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium, opiate, or opioid, or any salt, compound, derivative, or preparation of opium, opiate, or opioid (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as "trafficking in opium, opiate, opioid, or heroin" and if the quantity of such controlled substance or mixture involved: Is four grams or more, but less than 14 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 14 grams or more, but less than 28 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000); Is 28 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State's prison and shall be fined not less than five hundred thousand dollars ($500,000). Any person who sells, manufactures, delivers, transports, or possesses 100 tablets, capsules, or other dosage units, or the equivalent quantity, or more, of Lysergic Acid Diethylamide, or any mixture containing such substance, shall be guilty of a felony, which felony shall be known as "trafficking in Lysergic Acid Diethylamide". If the quantity of such substance or mixture involved: Is 100 or more dosage units, or equivalent quantity, but less than 500 dosage units, or equivalent quantity, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000); Is 500 or more dosage units, or equivalent quantity, but less than 1,000 dosage units, or equivalent quantity, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 1,000 or more dosage units, or equivalent quantity, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000). 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 mixture containing such substances, shall be guilty of a felony, which felony shall be known as "trafficking in MDA/MDMA." If the quantity of the substance or mixture involved: Is 100 or more tablets, 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 person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000); Is 500 or more tablets, 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 a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000); Is 1,000 or more tablets, capsules, or other dosage units, or 400 grams or more, the person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred fifty thousand dollars ($250,000). Except as provided in this subdivision or subdivision (5a) of this subsection, a person being sentenced under this subsection may not receive a suspended sentence or be placed on probation. The sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of the person's knowledge, 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 person to be sentenced has rendered such substantial assistance. A judge sentencing a person for a conviction pursuant to G.S. 90-95(h) or G.S. 90-95(i) for conspiracy to commit a violation of G.S. 90-95(h) shall impose the applicable minimum prison term provided by this subsection. The sentencing judge may reduce the fine and sentence the person consistent with the applicable offense classification and prior record level provided in G.S. 15A-1340.17, if after a hearing and an opportunity for the district attorney to present evidence, including evidence from the investigating law enforcement officer, other law enforcement officers, or witnesses with knowledge of the defendant's conduct at any time prior to sentencing, the judge enters into the record specific findings that all of the following are met: The defendant has accepted responsibility for the defendant's criminal conduct. The defendant has not previously been convicted of a felony under G.S. 90-95. The defendant did not use violence or a credible threat of violence, or possess a firearm or other dangerous weapon, in the commission of the offense for which the defendant is being sentenced. The defendant did not use violence or a credible threat of violence, or possess a firearm or other dangerous weapon, in the commission of any other violation of law. The defendant has admitted that he or she has a substance abuse disorder involving a controlled substance and has successfully completed a treatment program approved by the Court to address the substance abuse disorder. Imposition of the mandatory minimum prison term would result in substantial injustice. Imposition of the mandatory minimum prison sentence is not necessary for the protection of the public. The defendant is being sentenced solely for trafficking, or conspiracy to commit trafficking, as a result of possession of a controlled substance. There is no substantial evidence that the defendant has ever engaged in the transport for purpose of sale, sale, manufacture, or delivery of a controlled substance or the intent to transport for purpose of sale, sell, manufacture, or deliver a controlled substance. The defendant, to the best of his or her knowledge, has provided all reasonable assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals. The defendant is being sentenced for trafficking, or conspiracy to commit trafficking, for possession of an amount of a controlled substance that is not of a quantity greater than the lowest category for which a defendant may be convicted for trafficking of that controlled substance under G.S. 90-95(h). Sentences imposed pursuant to this subsection shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder. The penalties provided in subsection (h) of this section shall also apply to any person who is convicted of conspiracy to commit any of the offenses described in subsection (h) of this section. Beginning December 1, 2021, and annually thereafter, the Administrative Office of the Courts shall publish on its Web site a report on the number of sentences modified under G.S. 90-95(h)(5a) in the prior calendar year. Except where the conduct is covered under subdivision (2) of this subsection, any person who violates this subdivision shall be punished as a Class H felon. (2) Except as authorized by this Article, it is unlawful for any person to: a. Possess an immediate precursor chemical with intent to manufacture methamphetamine; or b. Possess or distribute an immediate precursor chemical knowing, or having reasonable cause to believe, that the immediate precursor chemical will be used to manufacture methamphetamine. Any person who violates this subdivision shall be punished as a Class F felon. (3) If any person commits a Class 1 misdemeanor under this Article and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be punished as a Class I felon. The prior conviction used to raise the current offense to a Class I felony shall not be used to calculate the prior record level. (4) If any person commits a Class 2 misdemeanor, and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be guilty of a Class 1 misdemeanor. The prior conviction used to raise the current offense to a Class 1 misdemeanor shall not be used to calculate the prior conviction level. (5) Any person 18 years of age or over who violates G.S. 90-95(a)(1) by selling or delivering a controlled substance to a person under 16 years of age but more than 13 years of age or a pregnant female shall be punished as a Class D felon. Any person 18 years of age or over who violates G.S. 90-95(a)(1) by selling or delivering a controlled substance to a person who is 13 years of age or younger shall be punished as a Class C felon. Mistake of age is not a defense to a prosecution under this section. It shall not be a defense that the defendant did not know that the recipient was pregnant. (6) For the purpose of increasing punishment under G.S. 90-95(e)(3) and (e)(4), previous convictions for offenses shall be counted by the number of separate trials at which final convictions were obtained and not by the number of charges at a single trial. (7) If any person commits an offense under this Article for which the prescribed punishment requires that any sentence of imprisonment be suspended, and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be guilty of a Class 2 misdemeanor. (8) Any person 21 years of age or older who commits an offense under G.S. 90-95(a)(1) on property used for a child care center, or for an elementary or secondary school or within 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 of marijuana for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(1) . For purposes of this subdivision, a child care center is as defined in G.S. 110-86(3) a., and that is licensed by the Secretary of the Department of Health and Human Services. (9) Any person who violates G.S. 90-95(a)(3) on the premises of a penal institution or local confinement facility shall be guilty of a Class H felony. (10) Any person 21 years of age or older who commits an offense under G.S. 90-95(a)(1) on property that is a public park or within 1,000 feet of the boundary of real property that is a public park shall be punished as a Class E felon. For purposes of this subdivision, the transfer of less than five grams of marijuana for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(1) . If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection as provided in this subsection, then the objection shall be deemed waived and the report shall be admitted into evidence without the testimony of the analyst. Upon filing a timely objection, the admissibility of the report shall be determined and governed by the appropriate rules of evidence. Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report. If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection as provided in this subsection, then the objection shall be deemed waived and the statement shall be admitted into evidence without the necessity of a personal appearance by the person signing the statement. Upon filing a timely objection, the admissibility of the report shall be determined and governed by the appropriate rules of evidence. History (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; 2011-12, ss. 2-4, 6-8; 2011-19, s. 5; 2012-188, s. 5; 2013-124, s. 1; 2013-171, ss. 7, 8; 2014-115, s. 41(a); 2015-32, s. 1; 2015-173, s. 4; 2017-115, s. 11; 2018-44, ss. 5-7; 2020-47, ss. 2(a), 3.) Cross References. - As to furnishing controlled substances to inmates of charitable, mental or penal institutions, see G.S. 14-258.1 . As to exemption from penalties in Chapter 90 for use or possession of hemp extract for the treatment of intractable epilepsy, see G.S. 90- 94.1. Task Force on Sentencing Reforms for Opioid Drug Convictions. - Session Laws 2017-115, s. 10(a)-(g), provides: "(a) Creation. - There is established the Task Force on Sentencing Reforms for Opioid Drug Convictions. The Task Force shall have 22 members. The Attorney General, Secretary of Health and Human Services, Secretary of Public Safety, Chief Deputy Secretary of Adult Correction and Juvenile Justice, Director of the Administrative Office of the Courts, and Executive Director of the North Carolina Sentencing and Advisory Commission or their designees shall be ex officio members of the Task Force and shall serve with the same rights and privileges, including voting rights, as other members. Appointments to the Task Force shall be made as follows: "(1) The Speaker of the House of Representatives shall appoint the following members: "a. Two members of the House of Representatives. "b. A sitting or former superior court judge of the General Court of Justice. "c. A sitting or former district court judge of the General Court of Justice. "d. A person who is a substance abuse treatment and recovery professional. "e. A representative from the North Carolina Conference of District Attorneys. "f. A person who is a criminal defense attorney. "g. One member at large. "(2) The President Pro Tempore of the Senate shall appoint the following members: "a. Two members of the Senate. "b. A sitting or former superior court judge of the General Court of Justice. "c. A sitting or former district court judge of the General Court of Justice. "d. A person who is a substance abuse and recovery professional. "e. A representative from the North Carolina of District Attorneys. "f. A person who is a criminal defense attorney. "g. One member at large. "(b) Study. - The purpose of the Task Force shall be to study and review cases of inmates who are incarcerated solely for convictions of opioid drug offenses that require active sentences under structured sentencing; to consider how to identify inmates who would be able to successfully reintegrate into society; and to develop and consider options for modifying existing statutes. Specifically, the Task Force shall do all of the following: "(1) Study the advisability of reducing sentences imposed under structured sentencing for opioid drug convictions based on the case facts and records of incarcerated inmates. "(2) Study the potential cost-savings and fiscal impact of an early release process for inmates convicted of opioid drug offenses. "(3) Identify and consider sentencing options that will help restore the ability of judges to use judgment, logic, and facts when imposing a sentence for a conviction of an opioid drug offense. "(4) Consider whether the mandatory sentences imposed under structured sentencing for convictions of opioid drug offenses serve as a deterrent. "(5) Consider options such as reclassifying opioid drug offenses, allowing courts to divert convicted offenders into treatment programs in lieu of imposing a sentence of active time in prison, increasing weight thresholds for trafficking in opioids or changing how quantities are measured, aligning minimum mandatory sentence lengths with those for most other drug offenses. "(6) Consider establishing a "pardon and parole board" that may recommend pardons and paroles for inmates convicted of opioid drug offenses. "(7) Consider any other options the Task Force deems relevant to this study. "(c) Cochairs; Quorum; Vacancies. - The Speaker of the House of Representatives shall designate one representative to serve as cochair, and the President Pro Tempore of the Senate shall designate one senator to serve as cochair. A majority of the Task Force shall constitute a quorum for the transaction of its business. A vacancy on the Task Force shall be filled by the original appointing authority using the criteria set out in this act for the original appointment. "(d) Per Diem, Travel, and Expenses. - Members of the Task Force shall receive per diem and necessary travel and subsistence expenses in accordance with G.S. 120-3.1 , 138-5, and 138-6, as applicable. "(e) Powers. - The Task Force, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120-19 and G.S. 120-19.1 through G.S. 120-19 .4. The Task Force may meet at any time upon the call of the chair. The Committee may meet in the Legislative Building or in the Legislative Office Building. "(f) Staffing. - The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to assist the Task Force in its work. The Directors of Legislative Assistants of the Senate and of the House of Representatives shall assign clerical staff to the Task Force and the expenses relating to the clerical employees shall be borne by the Task Force. "(g) Report. - The Task Force shall submit an interim report to the 2017 General Assembly when it reconvenes in 2018. The Task Force shall submit a final report, including findings and legislative recommendations, to the 2019 General Assembly. The Task Force shall terminate upon filing its final report." Editor's Note. - G.S. 90-95 (d1)(2) was recodified as G.S. 90-95 (d1)(1)b. at the direction of the Revisor of Statutes. G.S. 90-95(d1a) was recodified as G.S. 90-95(d1)(2) at the direction of the Revisor of Statutes. Session Laws 2015-32, s. 2, as amended by Session Laws 2015-264, s. 85, provides: "The Joint Legislative Oversight Commission on Justice and Public Safety may study the current State and federal law regarding the authority for State agencies to schedule controlled substances without legislative action and the procedure for that scheduling or rescheduling." Session Laws 2015-32, s. 3, made the amendment to subsections (d1) and (d2) by Session Laws 2015-32, s. 1, applicable to offenses committed on or after December 1, 2015. Session Laws 2015-173, s. 6, made the amendments to subsections (g) and (g1) by Session Laws 2015-173, s. 4, applicable to notices of intent to introduce a statement or report provided by the July 31, 2015. Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'" Session Laws 2017-115, s. 12, made the amendments to subdivisions (b)(2) and (d)(4) by Session Laws 2017-115, s. 11, effective December 1, 2017, and applicable to offenses committed on or after that date. Session Laws 2018-44, s. 1, provides: "This act shall be known and may be cited as "The Heroin and Opioid Prevention and Enforcement (HOPE) Act of 2018." Session Laws 2018-44, s. 16, is a severability clause. At the direction of the Revisor of Statutes, a colon was substituted for the period at the end of the introductory language of subsection (h). Session Laws 2020-47, s. 1, provides: "This act shall be known and may be cited as 'The North Carolina First Step Act.'" Session Laws 2020-47, s. 2(b), made the amendment of subsection (h) of this section by Session Laws 2020-47, s. 2(a), effective December 1, 2020, and applicable to sentences ordered on or after that date. Session Laws 2020-47, s. 4(a), (b), provides: "(a) Except as otherwise provided in this section, a person serving an active sentence imposed solely for a violation of G.S. 90-95(h) , or conspiracy to commit a violation under G.S. 90-95(i) , committed before the effective date of this section may file a motion for appropriate relief in accordance with Article 89 of Chapter 15A of the General Statutes for a modification of the person's sentence under the authority granted in G.S. 90-95(h) (5a), as enacted in Section 2 of this act. A person sentenced under G.S. 90-95(h)(5) is ineligible to file a motion for appropriate relief for a sentence modification under this section. The court shall require the State to respond to a motion for appropriate relief filed pursuant to this section within 60 days of the date of the filing and shall hold any hearing deemed necessary by the court within 180 days of the date of the filing. Notwithstanding any provision of Article 89 of Chapter 15A of the General Statutes to the contrary, a motion for appropriate relief filed pursuant to this section may only be granted if the following conditions are met: "(1) The motion for appropriate relief is filed within 36 months of the effective date of this act. "(2) The person seeking a sentence modification has no other felony convictions under G.S. 90-95 . "(3) The person was convicted solely for trafficking, or conspiracy to commit trafficking, as a result of possession of a controlled substance. "(4) The person seeking a sentence modification was sentenced for trafficking, or conspiracy to commit trafficking, of a controlled substance that was not of a quantity greater than the lowest category for which a defendant may be convicted for trafficking of that controlled substance under G.S. 90-95(h) . "If subdivisions (1), (2), (3), and (4) of this section are met, the court shall order that the person be resentenced in accordance with G.S. 90-95(h) (5a). "(b) This section becomes effective December 1, 2020, and applies to sentences ordered on or before November 30, 2020." Effect of Amendments. - Session Laws 2007-375, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, substituted "1,000 feet" for "300 feet" in subdivision (e)(8) and (10); in subdivision (e)(10), deleted "playground in a" preceding "public park" twice in the first sentence and deleted the former last sentence which defined "playground." Session Laws 2011-12, ss. 2 through 4 and 6 through 8, effective June 1, 2011, and applicable to offenses committed on or after that date, added the last sentence in subdivision (d)(1); added subdivisions (h)(3d) and (h)(3e); in subdivision (b)(2), inserted "or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance"; in subdivision (d)(4), inserted "7 grams of a synthetic cannabinoid or any mixture containing such substance" in the second sentence, and "21 grams of a synthetic cannabinoid or any mixture containing such substance" in the last sentence; and added subdivision (h)(1a). Session Laws 2011-19, s. 5, effective March 31, 2011, substituted "Crime Laboratory" for "Bureau of Investigation Laboratory" in subsection (g). Session Laws 2012-188, s. 5, effective December 1, 2012, throughout subsection (h), substituted "39 months" for "30 months," "51 months" for "42 months," "93 months" for "84 months," "222 months" for "219 months," "120 months" for "117 months," and "282 months" for "279 months." For applicability, see Editor's note. Session Laws 2013-124, s. 1, effective December 1, 2013, added sub-subdivision (d1)(1)c. For applicability, see Editor's note. Session Laws 2013-171, ss. 7 and 8, effective December 1, 2013, substituted "shall" for "may" preceding "be admitted into evidence" in the first sentence of the second full paragraph of subsection (g); and added the last two sentences in subdivision (g1)(3). For applicability, see Editor's note. Session Laws 2014-115, s. 41(a), in subdivision (d1)(1), made a minor stylistic change in subdivision (d1)(1)c.; and rewrote the undesignated paragraph. See Editor's note for effective date and applicability. Session Laws 2015-32, s. 1, effective December 1, 2015, in sub-subdivision (d1)(1)c, inserted "of methamphetamine, possession with the intent to sell or deliver methamphetamine, sell or deliver methamphetamine, trafficking methamphetamine, possession of an immediate precursor chemical" in the first sentence, and added the second sentence; and in subsection (d2), deleted "and (d1a)" following "subsection (d1)" in the introductory paragraph, added subdivisions (2a), (2b), (13a), (30a) and (40a), added "(Muriatic Acid)" at the end of subdivision (18), substituted "Sources of lithium metal" for "Lithium" in subdivision (21), and substituted "Sources of sodium metal" for "Sodium" in subdivision (41). For applicability, see editor's note. Session Laws 2015-173, s. 4, effective July 31, 2015, inserted "the objection shall be deemed waived and" in the next-to-last sentence of subsection (g) and the next-to-last sentence of subdivision (g1)(3). For applicability, see editor's note. Session Laws 2017-115, s. 11, deleted "or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance" following "5 grams of marijuana" in subdivision (b)(2); in subdivision (d)(4), deleted "7 grams of a synthetic cannabinoid or any mixture containing such substance," following "(avoirdupois) of marijuana" in the second sentence and deleted "21 grams of a synthetic cannabinoid or any mixture containing such substance," following "(avoirdupois) of marijuana" in the third sentence. For effective date and applicability, see editor's note. Session Laws 2018-44, ss. 5-7, effective December 1, 2018, in subsection (d2), added subdivision (29a), and substituted "Phenyl-2-propanone" for "Phenyl-2-propane" in subdivision (31); in subdivision (h)(3d), substituted "more of any substituted cathinone, as defined in G.S. 90-89(5)(j) ," for "more of MDPV", and " 'trafficking in substituted cathinones,' " for " 'trafficking in MDPV,' "; deleted subdivision (h)(3e); in subdivision (h)(4), substituted "opium, opiate, or opioid," for "opium or opiate", and "opium, opiate, opioid, or heroin" for "opium or heroin"; and substituted " 'trafficking in MDA/MDMA' " for " 'trafficking in MDADMA' " in subdivision (h)(4b). Session Laws 2020-47, s. 2(a), added "or subdivision (5a) of this subsection" in the first sentence of subdivision (h)(5); and added subdivision (h)(5a); and made a minor stylistic change. For effective date and applicability, see editor's note. Session Laws 2020-47, s. 3, effective June 26, 2020, added subsection (j). Legal Periodicals. - For note on punishment of physicians under the Controlled Substances Act, see 56 N.C.L. Rev. 154 (1978). For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980). For survey of 1982 criminal law, see 61 N.C.L. Rev. 1060 (1983). For note, "My Own (Not So) Private Garbage: the North Carolina Supreme Court Gives the Green Light to Warrantless Police Searches of Trash Placed Behind Your House in State v. Hauser," see 31 Wake Forest L. Rev. 1141 (1996). For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997). For article, "Legislative Survey: Criminal Law," see 22 Campbell L. Rev. 253 (2000). For article, "Another 'Straightforward Application': The Impact of Melendez-Diaz on Forensic Testing and Expert Testimony in Controlled Substance Cases," see 33 Campbell L. Rev. 1 (2010). For comment, "One Tough Pill to Swallow: A Call to Revise North Carolina's Drug Trafficking Laws Concerning Prescription Painkillers," see 33 Campbell L. Rev. 451 (2011).