In an earlier post, I wrote that simple possession of fentanyl was a misdemeanor Schedule II offense under then-current law. No more. Effective Dec. 1, 2021, fentanyl possession in any amount is treated as a felony. I have been receiving calls about the change and thought a brief post would be useful. Read on for the details.
Fentanyl and the fentanyl analogue carfentanil are classified as Schedule II controlled substances. See G.S. 90-90(2)(e) and (h). As I wrote in the first post, possession of a schedule II substance is generally a misdemeanor, with certain exceptions. Under the old law, the exceptions included any amount of cocaine, phencyclidine (“PCP”), methamphetamine, or amphetamine, (among other exceptions tied to dosage unit). See G.S. 90-95(d)(2) (2020). In case you missed it, S.L 2021-155 made various changes to chapter 90. Among other revisions, G.S. 90-95(d)(2) was amended to include fentanyl and carfentanil alongside the other schedule II substances for which felony liability attaches regardless of the amount. In relevant part, the amended section of the statute reads:
If the controlled substance is methamphetamine, amphetamine, phencyclidine, cocaine, fentanyl, or carfentanil and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof . . . the violation shall be punishable as a Class I felony. G.S. 90-95(2) (2021) (emphasis added).
The change seems straightforward enough, but there are at least a couple of wrinkles to consider.
Cases Arising Before Dec. 1, 2021. The old law applies for cases arising before December 1, 2021, and simple fentanyl possession with a date of offense before then should still be treated as a class 1 misdemeanor. See State v. Whitehead, 356 N.C. 444 (2012) (holding that the defendant must be sentenced pursuant to the law existing at the time of the offense). In other words, the change in the classification of the substances is not retroactive. For the substances to automatically qualify as a felony in any amount, the date of offense must be on or after Dec. 1, 2021.
Treatment of Misdemeanor Fentanyl Convictions. For felony sentencing purposes, the opposite is true. Prior convictions are classified pursuant to current law (and not necessarily the law at the time of the offense). G.S. 15A-1340.14(c). Thus, while a defendant convicted of possessing fentanyl prior to Dec. 1, 2021, will only face a class 1 misdemeanor, that conviction will be treated as a class I felony carrying 2 record level points if the defendant is convicted of a subsequent felony offense.
The same analysis likely does not apply in the habitual felon context. For purposes of habitual felon, a felony conviction is one that “is a felony under the laws of this State.” G.S. 14-7.1(b)(1). While we do not have an appellate case directly on point, both the sentencing law referenced above and the violent habitual felon statutes specifically authorize treatment of a prior conviction by its current classification, whereas the habitual felon statute is silent on the point. See Jeff Welty, North Carolina’s Habitual Felon, Violent Habitual Felon, and Habitual Breaking and Entering Laws, Administration of Justice Bulletin No. 2013/07 at 6 (UNC School of Government 2013). Further, “the weight of authority from other jurisdictions support judging a [prior] conviction by its classification at the time it was incurred, and this appears to be the better view under North Carolina’s habitual felon statutes as well.” Id. (citation omitted).
Indictment Issues. Prosecutors may obtain an indictment for a fentanyl offense before lab results have been returned. Sometimes the lab report comes back identifying the substance as a fentanyl derivative and not actual fentanyl. Fentanyl derivatives are classified as a Schedule I substance. G.S. 90-89(1a) (2021). I have been asked if the indictment for fentanyl can be amended in this situation or whether a new indictment must be obtained. My advice is to get a new indictment alleging the correct substance and schedule. See, e.g., State v. Ledwell, 171 N.C. App. 328 (2005) (finding a fatal defect where the indictment alleged possession of a schedule I substance but did not accurately name any schedule I substance).
On the other hand, the lab result could show that the substance in question is a mixture of fentanyl and other substances. In that case, the entire mixture may be treated as fentanyl and a new indictment would not be needed (as I discussed here).
Trafficking and PWIMSD. Under the old law, the State was stuck with misdemeanor possession unless it could show possession of more than 100 doses, evidence of intent to manufacture/sell/deliver, or the presence of at least 4 grams of the substance (at which point trafficking liability attaches). Given the relatively small amounts required for an individual dose, perhaps that was not a tall order. Under the amended law, though, the State will always have at least a class I felony if the substance is fentanyl or carfentanil, and any evidence of dosage unit, weight, or intent will only be relevant to more serious intent to distribute or trafficking charges.
Practitioners, have you encountered other issues or questions about fentanyl cases? I’m interested in hearing about it if so, and I am always happy to try and help with any questions. I can always be reached at email@example.com.