Must Officers Now Arrest, Rather Than Cite, for Misdemeanor Marijuana Possession?

This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.

Before this session. Until this legislative session, G.S. 15A-502(a) generally permitted criminal defendants to be fingerprinted only if (a) they were arrested, rather than cited or summoned to court, (b) they were “[c]omitted to imprisonment upon conviction,” or (c) they were convicted of a felony. Meanwhile, G.S. 15A-502(a1) generally required “the arresting law enforcement agency” to fingerprint “a person charged with the commission of a felony.”

The combined effect of these two provisions was that all felony defendants were arrested, not summoned. (Citations can’t be used to charge felonies because G.S. 15A-302 limits their use to misdemeanors and infractions.) Although by statute summonses may be used for any “crime or infraction,” and although the official commentary to the statute says that they are appropriate for use with felonies, see G.S. 15A-303 & official commentary, many people reasoned (1) that all felony defendants must be fingerprinted, and (2) they may be fingerprinted only if arrested, so (3) they must be arrested rather than summoned. Thus, the AOC summons form, AOC-CR-113, is captioned “Misdemeanor Criminal Summons,” suggesting that felonies should not be charged by summons. Not everyone agrees with this reasoning, but my impression is that it is the prevailing view.

By contrast, fingerprinting was not mandated for misdemeanor defendants, so they could be charged by summons – or by citation – if circumstances made that more appropriate than an arrest.

2015 gun bill requires fingerprinting for certain misdemeanor defendants. This session, the General Assembly passed S.L. 2015-195, a bill focused on amending the firearms laws. It altered G.S. 15A-502 to make it “the duty of the arresting law enforcement agency to cause a person charged with the commission of [specified] misdemeanors to be fingerprinted, for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS), and to forward those fingerprints to the State Bureau of Investigation.” (S.L. 2015-267 removed from the statute the phrase “for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS),” but it left the directive of the statute unchanged. Both laws are already in effect.)

Relatively few misdemeanors are covered by the new law, including driving while impaired and certain domestic-violence-related offenses. It appears that the misdemeanors were selected because they relate in some way to conditions that would prevent a person from lawfully owning a gun. For example, individuals who are subject to a DVPO or who have been convicted of a domestic violence misdemeanor are prohibited from possessing a firearm under federal law. See generally 18 U.S.C. § 922(g). And, as Shea discussed here, in some instances a DWI conviction may result in a person being ineligible to possess a firearm.

Misdemeanor drug possession included in new law. Most of the covered misdemeanors normally resulted in arrests anyhow, so fingerprinting was at least a possibility. But there’s one very significant exception: the law applies to misdemeanor possession of a controlled substance under G.S. 90-95(a)(3). I speculate that this was included in the bill because 18 U.S.C. § 922(g)(3) makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm.

A misdemeanor possession charge normally involves possessing 1.5 ounces of marijuana or less, most often half an ounce or less. Many officers prefer to issue citations for these offenses rather than making arrests. These offenses are incredibly common, with over 35,000 charges last year for possession half an ounce of marijuana or less and over 2,000 for possession of more than half an ounce but not more than 1.5 ounces.

Does the new law require arrests? A number of officers and others have asked about the meaning of the new provision. The wording of the provision is very similar to the wording of the felony fingerprinting provision, which has generally been read to require arrests and to preclude summonses for felony defendants. If the new provision is read the same way, officers would need to arrest and fingerprint rather than cite or summon every person to be charged with misdemeanor possession of a controlled substance. That means more work for officers, more work for magistrates, more work for clerks, and arrest records for more defendants. Or else it means more officers forgoing charges to avoid the burdens associated with an arrest. Of course, if that’s the law, it’s the law, and perhaps there are benefits to including more misdemeanants’ fingerprints in the system. At least one of my colleagues supports this reading.

That’s not the only possible reading of the provision, however. One could read it so say that if a person charged with a misdemeanor drug possession offense is arrested, he or she must be fingerprinted, but not to require an arrest. In support of this view, one could argue that the legislature knows how to enact clear mandatory arrest provisions, see G.S. 50B-4.1(b) (officers “shall arrest” when they develop probable cause to believe a person has violated a DVPO), yet it didn’t do so here. My impression is that many law enforcement agencies are adopting this interpretation, and it’s hard to see how such an interpretation would come before a court for review. Does that open the door to reconsidering the practice regarding felonies? At least one of my colleagues thinks that it should.

I have also heard the suggestion that an officer may still cite or seek a summons for a person charged with a misdemeanor drug possession offense, but that the officer must fingerprint the person anyhow. I don’t think that interpretation works, as it would render the reference to the “arresting law enforcement agency” meaningless. Also, as a practical matter, roadside fingerprinting would be a nightmare.

This strikes me as a situation in which a bill may have unintended consequences that are greater than its intended consequences. But then again, perhaps the General Assembly intended all of the bill’s consequences – with little legislative history available, it is hard to know. As always, readers’ insights and perspectives are welcome.