Possession of Fentanyl

In keeping with my recent work in the Chapter 90 realm, here is another issue, presented in pop quiz form. Without peeking at the statutes:

What is the appropriate charge for a possession-only amount of fentanyl?

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I was recently asked this question and must admit that I initially got it wrong. My instinct was that the offense was a Schedule I felony offense (choice (a), above). Not so. While fentanyl derivatives are classified as Schedule I substances, fentanyl itself is classified as Schedule II substance under state law. See G.S. 90-90(2)(e) and (h). Choice (a) above is therefore out.

But (my thinking went), it is a felony, right? Didn’t the legislature do a fentanyl fix recently? Aren’t most of the drugs in schedule II automatic felonies anyway? Wrong again. Possession of a Schedule II substance is generally a misdemeanor, at least in most circumstances that would support a possession-only charge. Under G.S. 90-95(d)(2), possession of a Schedule II substance is a misdemeanor except in the following circumstances: where the substance is more than four doses of hydromorphone, where there are more than 100 doses of any Schedule II, or where the substance is any amount of cocaine, amphetamine, methamphetamine, or phencyclidine (“PCP”). Fentanyl is not included within any of those exceptions. We can therefore rule out (b) above.

Within the last few years, the legislature has passed several laws aimed at addressing the opioid crisis. Most relevant here, the Heroin and Opioid Prevention and Enforcement (or “HOPE”) Act amended G.S. 90-95(h)(4) in 2018 to ensure that fentanyl and fentanyl-derived substances fell within the reach of the heroin and opiate trafficking law. But that amendment did not alter the classification of fentanyl as a Schedule II substance, nor did it include fentanyl within the felony exceptions in G.S. 90-95(d)(2).

Accordingly, the appropriate charge for possession of fentanyl in a possession-only amount is a misdemeanor Schedule II, or choice (d). The same analysis applies to possession of carfentanil, a related and even deadlier substance.

As far as choice (c), there is such a crime as misdemeanor possession of a Schedule I substance—for less than one gram of MDPV (or bath salts) under G.S. 90-95(d)(1). With that exception, all other substances classified as Schedule I are a felony in any amount.

This creates the situation that while possession of any amount of heroin or the other opium-based and opiate drugs classified in Schedule I is always a felony, possession of fentanyl (and carfentanil) is punished at the misdemeanor level in small amounts.

Felony Fentanyl. That is not to say that fentanyl possession can never be a felony. Possession of 4 grams or more of fentanyl triggers trafficking liability under G.S. 90-95(h)(4), just like other opiate and opioid substances, such as heroin. I noted in my last post that 4 grams of heroin is a fair amount of the substance in terms of individual doses. Fentanyl and carfentanil are exponentially stronger substances, and users presumably require a much, much smaller dose—3 mg. of fentanyl, or a few grains of the substance, is a lethal dose for most people.

Possession of fentanyl in amounts short of a trafficking amount may also be a felony. Where there are more than 100 doses, it could be charged as felony possession under the exception in G.S. 90-95(d)(2) noted above. Given the strength of the substance and the apparently tiny dosage size, an amount well short of four grams could meet the “over-100 doses” standard to trigger felony possession.

Relatedly, while there is no set amount at which felony liability for possession with intent to sell or deliver attaches, if there is a “substantial amount” of the drug or other circumstances indicating an intent to distribute, officers may have probable cause to charge that felony as well. See State v. Morgan, 329 N.C. 654 (1991) (“Although ‘quantity of the controlled substance alone may suffice to support the inference of an intent to transfer, sell, or deliver,’ it must be a substantial amount.”) (internal citation omitted).

Without one of these circumstances, however, the appropriate charge for simple possession of fentanyl or carfentanil is a Class 1 misdemeanor.

December 2021 update: Effective Dec. 1, 2021, fentanyl and carfentanil are felony Schedule II offenses without regard to amount under amended G.S. 90-95(d)(2). This change was made pursuant to SL 2021-155, available here.