Black-letter propositions
- 01
It is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense a controlled substance, or to possess a controlled substance with intent to manufacture, distribute, or dispense it.
- 02
It is unlawful for any person knowingly or intentionally to possess a controlled substance unless it was obtained directly, or under a valid prescription or order, from a practitioner acting in the course of professional practice, or as the statute otherwise authorizes.
- 03
A first offense of simple possession under the federal statute carries up to one year of imprisonment and a minimum fine of $1,000, or both, and a prior drug conviction raises the minimum sentence to 15 days and the maximum to two years.
- 04
Distribution penalties depend on the drug and the quantity of a mixture or substance containing a detectable amount, so five kilograms or more of a cocaine mixture carries a term of not less than 10 years and not more than life, and 500 grams or more carries not less than five and not more than 40 years.
- 05
A violation involving a schedule I or II substance that does not reach the quantity tiers carries a term of not more than 20 years, and a higher minimum applies if death or serious bodily injury results from use of the substance.
- 06
In North Carolina a person commits impaired driving by driving a vehicle on a highway, street, or public vehicular area while under the influence of an impairing substance, or after consuming enough alcohol to have an alcohol concentration of 0.08 or more at any relevant time after the driving, or with any amount of a Schedule I controlled substance or its metabolites in the blood or urine.
- 07
A person charged with impaired driving cannot defend on the ground that the person was legally entitled to use the alcohol or drug.
- 08
The result of a chemical analysis is sufficient evidence to prove a person's alcohol concentration, and a person who submitted to a blood analysis may use the result in rebuttal.
- 09
In North Carolina a person commits felony death by vehicle by unintentionally causing a death while engaged in impaired driving where the impaired driving is the proximate cause of the death.
- 10
In North Carolina a person commits misdemeanor death by vehicle by unintentionally causing a death while violating a traffic law other than impaired driving where the violation is the proximate cause, and felony death by vehicle is aggravated when the impaired driver has a previous impaired-driving conviction within seven years.
Use this attack sequence under time
Frame the issue
Separate the conduct: simple possession, possession with intent, or distribution.
Resolve the next checkpoint
Find the mental state, which the federal statutes state as knowingly or intentionally.
Resolve the next checkpoint
Read the quantity and drug type against the statute's penalty tiers.
Resolve the next checkpoint
For impaired driving, identify the place of driving, the impairment or measured concentration, and the timing.
Finish the conclusion
For a death or injury, apply the proximate-cause element and check whether the underlying offense was impaired driving.
Common wrong turns
- Possession with intent to distribute is a separate and more serious offense than simple possession, and intent is usually shown by circumstances such as quantity and packaging.
- A lawful right to use a drug or alcohol is not a defense to impaired driving under the North Carolina statute.
- Death by vehicle needs proximate cause between the impaired driving and the death, and a death alone is not enough.
- A blood-test result taken after the driving still counts when the statute reaches concentration at any relevant time after the driving.
Worked example
Marcus is stopped for weaving and the officer smells alcohol. A chemical test taken 40 minutes later shows an alcohol concentration of 0.09. Marcus says he drank only after parking his car at home. He later loses control on a road and a passenger in another car dies.
Under the North Carolina statute, the concentration test asks whether he had 0.08 or more at any relevant time after the driving, and the chemical analysis is sufficient evidence. If the impaired driving proximately caused the death, felony death by vehicle applies, and any legal right to drink is not a defense.
Practice this topic
Possession and distribution
Title 21, section 841(a)(1) makes it unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, and section 841(a)(2) applies the same structure to counterfeit substances.
Section 844(a) makes it unlawful for any person knowingly or intentionally to possess a controlled substance unless it was obtained directly, or under a valid prescription or order, from a practitioner acting in the course of professional practice, or as the subchapter otherwise authorizes. The first-offense penalty is imprisonment of not more than one year and a minimum fine of $1,000, or both, with a minimum of 15 days and a maximum of two years after a prior drug conviction.
Penalty tiers by quantity
Section 841(b)(1)(A) sets a term of not less than 10 years and not more than life for violations involving, among other amounts, one kilogram or more of a heroin mixture or five kilograms or more of a cocaine mixture, and 20 years to life if death or serious bodily injury results from use of the substance.
Section 841(b)(1)(B) sets a term of not less than five and not more than 40 years for, among other amounts, 100 grams or more of a heroin mixture or 500 grams or more of a cocaine mixture, and section 841(b)(1)(C) sets a maximum of 20 years for other schedule I or II violations.
Impaired driving and death by vehicle
North Carolina General Statutes section 20-138.1(a) provides that a person commits the offense of impaired driving if the person drives a vehicle on a highway, street, or public vehicular area in the State while under the influence of an impairing substance, after consuming enough alcohol to have an alcohol concentration of 0.08 or more at any relevant time after the driving, or with any amount of a Schedule I controlled substance or its metabolites in the blood or urine. Section 20-138.1(b) provides that legal entitlement to use alcohol or a drug is not a defense.
Section 20-141.4 defines felony death by vehicle as unintentionally causing a death while engaged in impaired driving, where that offense is the proximate cause of the death, and misdemeanor death by vehicle as doing so while violating another traffic law. It also defines felony serious injury by vehicle and aggravated versions that apply when the person has a previous impaired-driving conviction within seven years of the offense.
Frequently asked questions
What is the controlling rule for drug possession and distribution offenses, impaired driving, and death or injury by vehicle (federal statutes and north carolina as the model)?+
Identify the offense, list its elements, and apply the statute's mental state, quantity or concentration, and causation requirements to the facts.
What is the difference between simple possession and possession with intent to distribute?+
Section 844(a) covers knowing possession, and section 841(a)(1) separately covers possession with intent to distribute, which needs proof of the intent.
What mental state do the federal drug statutes require?+
They require that the person act knowingly or intentionally, under sections 841(a) and 844(a).
How does quantity affect federal distribution penalties?+
Penalties rise by tier, for example 5 years to 40 years at 500 grams of a cocaine mixture and 10 years to life at 5 kilograms, under section 841(b)(1).
Is a legal right to use alcohol a defense to impaired driving in North Carolina?+
No, the statute states that legal entitlement to use alcohol or a drug is not a defense, under section 20-138.1(b).
What makes death by vehicle a felony in North Carolina?+
The unintentional death occurs while the person is engaged in impaired driving that proximately causes it, under section 20-141.4(a1).