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The New G.S. 90-96

November 29th, 2011
By Jamie Markham

Last year, the Onion (my favorite news satire outfit) ran an article headlined “Nation Shudders at Large Block of Uninterrupted Text.” It’s a pretty funny take on modern society’s overreliance on things like bullet points and YouTube to process information. The headline made me think of G.S. 90-96.

As most readers know, G.S. 90-96 allows for a conditional discharge for certain drug offenders. The statute itself is long and convoluted, but conceptually the law is pretty straightforward. It allows a convicted defendant to be placed on probation without the court actually entering judgment in the case. If the person fulfills the terms and conditions of the probation, the court dismisses the charges and the defendant is left without a conviction. If the person violates a term or condition of the probation, the court may enter an adjudication of guilt and sentence the defendant. Successful defendants under age 22 may apply for an expunction of the dismissed charge under G.S. 15A-145.2(a).

The Justice Reinvestment Act (JRA) (S.L. 2011-192) makes several changes to G.S. 90-96, all of them effective for persons entering a plea or found guilty on or after January 1, 2012. The first set of changes involves subsection G.S. 90-96(a). I’ll get to subsection (a1) and the other portions of the law below.

The JRA both limits and expands eligibility for discharge and dismissal under G.S. 90-96(a). On the one hand, it limits the pool of eligible defendants by excluding anyone previously convicted of any felony under any state or federal law or any controlled substance or drug paraphernalia offense. Existing law excluded only those defendants with prior controlled substance or drug paraphernalia convictions. On the other hand, the law expands G.S. 90-96(a) by allowing discharge and dismissal of any misdemeanor or felony simple possession crime under G.S. 90-95(a)(3), regardless of the substance schedule or amount, and possession of drug paraphernalia under G.S. 90-113.22. Under existing law, the only felony offense eligible for discharge and dismissal under G.S. 90-96(a) was possession of less than one gram of cocaine. (All possession crimes, including felonies, were already eligible for discharge and dismissal under existing G.S. 90-96(a1), but again, I’ll get to it in a minute.)

Those changes are important, but the biggest change to G.S. 90-96(a) under the JRA is that it makes discharge and dismissal mandatory for consenting defendants. The provision saying the court “may, without entering a judgment of guilt . . . defer further proceedings and place [the defendant] on probation,” is changed to say the court “shall” do it. That means any eligible defendant who pleads guilty to or is found guilty of a simple possession offense must, if he or she consents, be placed on probation under G.S. 90-96(a).

I have heard concerns about the mandatoriness of the new provision from both prosecutors and defense lawyers. Prosecutors are expecting an increase in trials on simple possession offenses; a defendant charged with simple possession has nothing to lose by going to trial if probation under G.S. 90-96(a) is mandatory upon conviction. Defense lawyers, meanwhile, have pointed out that probation under G.S. 90-96(a) is, in some senses, worse than other outcomes they might be able to obtain under existing law—like punishment by a fine only, for example. Of course, a defendant can always short-circuit the “mandatory” deferral by refusing to consent to it.

All parties—including judges and clerks—have expressed concerns about the logistical implementation of the new provision. Because discharge and dismissal can occur only once for any defendant, the court must make certain before placing the defendant on a new deferral that records of a prior one haven’t been expunged. And the only way to do that is to ask recordkeeping officials at the Administrative Office of the Courts to review the confidential file maintained in Raleigh, which—understandably—takes time. AOC has designed a new form, AOC-CR-237, to help expedite that process by allowing the parties to ask for an anticipatory review of the confidential file in cases where a conviction for simple possession is possible.

About subsection (a1) of G.S. 90-96. It’s a complicated provision with a strange history that dates back to 1981, but only since 2009 has the law explicitly provided that discharge and dismissal were permissible under subsection (a1) at all. See S.L. 2009-577. For at least the past two years, though, it has been clear that a defendant’s first simple possession offense under G.S. 90-95(a)(3)—regardless of drug schedule or amount—or G.S. 90-113.22 was eligible for deferral under subsection (a1). Subsection (a1) also provided that for the purposes of determining whether a conviction is a person’s first, no prior offense occurring more than seven years before the date of the current offense is considered. In those ways (the broader offense eligibility and the seven year look-back period), subsection (a1) has been broader than subsection (a).

The JRA amends G.S. 90-96(a1) to make it applicable to a first conviction of any offense that qualifies under subsection (a)—which, in light of the JRA’s expansion of offense eligibility under subsection (a), is really no change to subsection (a1) at all. Subsection (a1) continues to be an optional program; the court “may” use it for an eligible defendant. Given that subsections (a) and (a1) cover the same offenses, you might be thinking that there’s no need for discretionary relief under (a1) when relief under (a) is now mandatory. That’s largely true, but subsection (a1) continues to cast a broader net than subsection (a) in terms of defendant eligibility. Subsection (a1) alone includes the seven year look-back window for prior convictions and dismissals. And subsection (a1) does not exclude defendants with prior non-drug felony convictions (it only excludes those with prior convictions under G.S. 90-95(a)(3) and 90-112.22, as well as convictions under  90-95(a)(1), 90-95(a)(2), 90-113.10, 90-113.11, and 90-113.12).

The JRA also amends the expunction provisions in G.S. 90- 96(d) and the corresponding procedure in G.S. 15A-145.2(b) to allow an expunction of any felony possession offense under G.S. 90-95(a)(3) if the charges were dismissed or the person was found not guilty. (The legislation’s effective date—which is based on “persons entering a plea or who are found guilty of an offense”—is unclear as applied to dismissals.)  The law also changes the expunction provisions in G.S. 90-96(e) and the corresponding procedure in 15A-145.2(c) to allow an expunction of a conviction of a felony possession offense if the person has no prior convictions specified in those statutes.

My sense is that some districts in North Carolina use G.S. 90-96 a lot and some don’t use it at all. After January 1, everyone will have to come to grips with that large block of uninterrupted text.

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17 Responses to “The New G.S. 90-96”

  1. Francis D'Ambra says:

    Hello good folks at the Institute. I know this question is off topic but I was hoping to get your opinion on an issue. I am considering a run for elected office. A question was posed to me by a constiuent about the lefitimacy and or appropriateness of a County Attorney serving simultaneously as County Manager. Can someone there give me a valid opinion on this practice as it seem that there is no openly cry of conflict of interest? I appreciate your response. Thank you
    Francis D’Ambra

  2. Charles Anderson says:

    If a defendant receives a discharge and dismissal under 90-96(a) and is then subsequently (within seven years) charged with a crime which otherwise qualifies under the provisions of 90-96(a), are they eligible for the probationary provisions of 90-96(a1).

    To be more specific. Defendant received a 90-96(a) judgment for Poss. of Drug Paraphernalia. Subsequently, but within seven years, defendant is charged with possession of cocaine. I understand Defendant is no longer eligible for 90-96(a) ["Discharge and dismissal under this section or G.S. 90-113.14 may occur only once with respect to any person"]. However, may defendant be sentenced pursuant to 90-96(a1)? 90-96(a1) says “Upon the FIRST conviction only of any offense which qualifies under the provisions of subsection (a) of this section…the court may place the defendant on probation…” But, 90-96(a) says “Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualification or disabilities imposed by law upon conviction of a crime including the additional penalties imposed for second or subsequent convictions under this Article.”

    It seems to me that if your record is clean you can make use of 90-96(a). Once you’ve used a discharge under 90-96(a) and you are charged with and plead to or are found guilty of an offense that would otherwise be covered by 90-96(a), the Court may sentence you under 90-96(a1).

    Does anyone have any thoughts/experience with the above? Thanks.

  3. Lili Lopez says:

    Mr. Markham:

    A co-worker posed a question to me a few minutes ago, in relation to 90-96 pleas. I have looked over the statute, and prior blog posts, and have not found the answer to our question. Is a defendant entitled to a 90-96 if the defendant pleads guilty to a number of drug chages that did not occur out of the same transaction or did not occur on the same date of offense? For instance, can a defendant plead pursuant to 90-96 if they picked up 5 posession of drug paraphernalias, all with 5 different dates of offenses? I assume that if the State does not object, then this can occur, but we dont think that the defedant is entitled to a 90-96 on numerous unrelated drug offenses.

  4. Jamie Markham says:

    Lili Lopez: If the defendant is otherwise eligible then I think G.S. 90-96 appears to be mandatory for all the cases. I mention this issue briefly in FAQ #59, linked in this post: http://nccriminallaw.sog.unc.edu/?p=4229.

  5. Lili Lopez says:

    Thank you!

  6. Larry Reeves says:

    Question: You explain that “[s]uccessful defendants under age 22 may apply for an expunction of the dismissed charge under G.S. 15A-145.2.” My reading of 90-96 is that a defendant must not be “over 21 years of age” to qualify for an expunction under 15A-145.2. Thus, not everyone who is under the age of 22 qualifies for a 145.2 expunction. For example, a person 21 years and one day of age would not qualify. Am I wrong?

  7. Jamie Markham says:

    Larry Reeves: The Attorney General interpreted “not over 21″ to mean “until 22nd birthday” in the opinion letter available here http://nccriminallaw.sog.unc.edu/wp-content/uploads/2013/08/42NorthCarolinaAttorneyGe.pdf

  8. This week I have had three clients who were “mandated” to a local program called “Interventions” who wanted to come to my center to complete their ‘treatment”. It appears that the 90/96 has replaced what was referred to as The First Offenders Program which we have been providing here in Guilford County for over ten years. The main issue here is the court is sending everyone with a drug charge to this 7 hour education/prevention program run by one person who charges $175 even though we offer that same program for $150. The main issue here is the lack of an assessment or evaluation to determine if someone might benefit from treatment, use their insurance, actually want help or want to go elsewhere. This law has the judge essentially making the diagnosis of “non abuse” and mandating that client into one program run by a licensed mh/sa clinician who then skips the whole assessment step and gathers the numbers together and turns on the videos. Is there even a requirement you come sober? Can you smoke weed prior to the session to make it more interesting? The First Offenders Program always started with an assessment and then a referral to four places for the treatment which minimized the self-serving evaluator who might claim one needed 20 hours of treatment and then shoehorn them into their own program. The offender should at least be told that they can find their own licensed clinician, complete at least 7 hours of education/prevention and bring back a completion document on the letter head showing the credentials of the clinician. I left a message a week ago for the Interventions clinician to call, so did this Probation Officer and three clients. She is apparently doing so well down at the courhouse everyday getting the new recruits she doesn’t have time for phone calls. One client had Medicaid, which would pay for her treatment, that she admits she needs, but she was told to pay up the $175 or get reported for non-compliance. This is just wrong. I am sending a letter today to the District Court Judges notifying them that The Ringer Center, AL-Con Counseling, ACDM and others also qualify to do this 7 hour program of education/prevention as two of them already do a 16 hour program for DWI offenders at only $160, go figure. I think they would be happy to do 7 for much less. I know I would.
    Stephen W. Ringer, LCSW, CSAC, CCS

    • lisa says:

      Hi Stephen ,I have met you many years ago.And I recall you was very smart and have alot of knowledge.I happen to come to this site, trying to get some advice.My question for you is ,Ive got a misdemeanor larceny charge.Only trouble ive been in was dwi at age ,18 .im now 41.This wasnt done on purpose.Just too much on my mind , with store bags in hands.I saw a shirt , all intentions of paying for it .With too much on my mind , simply walked out store with shirt.Actually held door open for loss prevention officer! Now to my question , Ive called so many lawyers and there telling me i can or have to take this 1st offender class.1 lawyer told me , i could defend myself .But have proof i went to this class.Case will be dismissed.And may have some commuity service.I have no one to give me advice .In your opinion , should I get a lawyer? Or defend myself and take offender class?Im not loaded.I just wont to get this done with.thanks for any advice ! God bless you

  9. pb waller says:

    if you had a date of 1/5/08 charged and had a conviction date of 3/6/10 charges of attempting traffic and maintaining dwelling. no priors really nothing to do with it just wrong spot wrong time. and a bad lawyer, can you apply for EXPUNCTION now and what box of the 90 96 do I check when filling out the 000544. this is really a mess need to clear up asap my business is failing and with this I have no way of saving it. this was my x-wife involved in this mess was pulled into by jealous people. never been involved. special agent from NC told me to file these papers she knew it was a un fair thing and advised me. can you answer what route I need to take. did my probation etc. completely done no problems just need to move on.

  10. Robert Lucas says:

    I HAVE BEEN CHARGED WITH 4 COUNTS OF SELL AND DELIVER SCHEDULE II CS 90-95(A) (1). I HAVE NEVER BEEN CHARGED WITH A FELONY BEFORE AND MY LAWYER SAYS HE CAN PLEAD IT DOWN TO ONE COUNT OF SELL AND DELIVER SCHEDULE II CS 90-95(A) (1)..AM I ELIGIBLE FOR 90-96? I HOPE SO. PLEASE, ANY INFO WOULD BE APPRECIATED. THANKS!!!

    • Richie Rich says:

      I am NOT an attorney so this is just what I believe to be a good guess at what you want to know: Likely 90-96 applies to just simple possession charges, not sales, which is a seperate offense. You say you have never been convicted of a felony, but what about misdemeanors, such as any possession or other drug charges for the last seven eyars? ? If so, kiss 90-96 goodbye. The gist of the article above as I read it is this: 90-96 is used for first time defendants of possession charges to escape a criminal record by completing probation requirements and having the charge left in legal limbo until completion or revocation and application of the original charge. Prosecutors are highly unlikely to agree to any sentence after dropping three sales counts to begin with, and if you get probation you will be fortunate..some jail time is almost guaranteed for sales, especially multiples, so don’t get your hopes up..if you are in fact guilty, then learn a life lesson and move on:
      When you are involved in the black market and deal with people who have self preservation as their creed, not loyalty and sacrifice for principles, you can expect subterfuge, treachery and snitching and worse. The really successful drug sellers are those so far removed from the narcs and buyers that only rarely will any of them be exposed and brought to justice. Either go big or get out, if freedom from imprisonment is high on your agenda of desirable outcomes. In any event, 90-96 is limited and only a lawyer can give you proper advice on eligibility , but if I were you I would not get my hopes up..

  11. lauren says:

    So is this the Mandatory option for a first time offender with possession? Or do you still have the option to just pay the fine?? I had a friend who recently was given a citation for possession of less than a ounce of marijuana. When He went to court the judge said that he has to return to court again for the gs 90-96. Is that his only option or can he just pay a fine? This is his first offense but he would just rather pay the fine instead of complete this program, if that is even an option? When he first got to court they asked him if he wanted to pay the fine or do the program. He said pay the fine, but the judge insisted that he return on a later date for that program??? thanks for any and all advice.

    • Richie Rich says:

      90-96 says that the judge ” shall ‘ impose the 90-96 program “.. unless the court determines with a written finding, and with the agreement of the District Attorney, that the offender is inappropriate for a conditional discharge for factors related to the offense”. As for paying a fine, it is not the defendants choice ; ” Notwithstanding the provisions of G.S. 15A-1342(c) or any other statute or law, probation may be imposed under this section for an offense under this Article for which the prescribed punishment includes only a fine.” If a judge decides that a fine is not enough of a punishment then the court can impose a 90-96 sentence.

      One real problem is that despite the rule of law that there is not supposed to be a conviction on your record “..the court shall, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation “, the DOc computer will show a conviction anyway and the sucessfully discharged defendant has to jump through hoops to get a hearing and get the charge officially dismissed and the record corrected. This should not be the case, and after an appointed attorney has been released from the case it is difficult to get all the forms and hearings set to deal with the isssue of final disposition. I would like an attorney to spell out exactly how one gets the agreed upon dismissal dealt with after successful completion of the probation terms, and how to get the DOC computer to remove the conviction that was supposed to have been deferred in the first place..

  12. Tom Brandon says:

    All possession crimes, including felonies. were already eligible… but I’ll get to that in a minute. last sentence in paragrahph above… could you expand on that??? for instance could someone charged with 90-95(e)(9), be deferred since this is a possession on prison property??

  13. A.E. Taylor says:

    How should a 90-96 be entered into AOC? It appears that the decision is being made county by county. One would assume that the defendant was convicted if AOC records show a plea of Guilty, Verdict: Guilty. Even though “90/96″ is listed as a special condition on AOC. An employer would most likely confuse this as a conviction thus affecting the probationer’s chance of employment.

    If G.S. 90-96 clearly states, “without entering a judgment of guilty…” then why are some Clerk’s of Superior Court allowing the disposition of the verdict to be entered as “guilty” when there is no adjudication?

    Furthermore, would “without entering a judgment of guilty” and “without entering a verdict of guilty” be the same thing?

  14. Brittany jackson says:

    I was charged with poessession of drug paraphernalia and my landlord is using this to try and evict me. What I wanted to know is if this charge is considered an Article 7 under the G.S. 42.63 or not.

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