Get a Former State Prosecutor working on your side

February 1, 2012

The Justice Reinvestment Act (JRA) (S.L. 2011-192) has made several changes to areas of criminal law. Most notably in my area of practice, the changes allow me to help first time offenders under North Carolina General Statute 90-96, which allows for a conditional discharge for certain drug offenders. As of January 1, 2012, the new statute allows a convicted defendant to consent to being placed on probation without the court actually entering judgment. If the person fulfills the terms and conditions of the probation, the statute reads that the court shall dismiss the charges against the defendant. If however, the person violates a term or condition of the probation, the court may enter an adjudication of guilt and sentence the defendant. Successful defendants may apply for an expunction of the dismissed charge under G.S. 15A-145.2(a).

 

The defendants that are eligible for the conditional discharge are those who have a clean criminal record and are charged with any misdemeanor or felony simple possession of controlled substances crime under G.S. 90-95(a)(3), regardless of the substance schedule or amount, and/ or possession of drug paraphernalia under G.S. 90-113.22. This is expansive, as the old statute would only allow a 90-96 to be used for defendants charged with possession of cocaine.

 

Many in the judicial system, including judges, lawyers, and clerks, have expressed concerns about how the statute will be implemented in daily use. For example, if the defendant receives a conditional discharge, does the charge get automatically dismissed or does it come back to the court for review. And then, if the case is dismissed, and the defendant request an expungment, will the judge have to inquire with the State Bureau of Investigation that the defendant has not previously has a similar charge expunged. All of this will take some time and some practice to work out, so in the meantime the Administrative Offices of the Court has designed a new form to help expedite that expungement 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. If you have any questions, or would like to see if a conditional discharge would be appropriate in your pending charges, please give us a call today.