Persons in possession of illegal substances must pay taxes on them, in North Carolina. Not kidding.

This is not the Onion.  This is not a  joke.  Controlled substances, meaning Moonshine and Drugs, are taxed in North Carolina.  So after you get arrested, you get a tax bill.  And that tax bill can get sky high.  We can help with that.

  1. What is the unauthorized substances tax?
    • The unauthorized substances tax is an excise tax on controlled substances (marijuana, cocaine, etc.), illicit spirituous liquor ("moonshine"), mash and illicit mixed beverages.
  2. Who is required to pay the tax?
    • The tax is due by any individual who possesses an unauthorized substance upon which the tax has not been paid, as evidenced by a stamp.
  3. When is the tax due?
    • The tax is payable within 48 hours after an individual acquires possession of an unauthorized substance upon which the tax has not been paid, as evidenced by a stamp.
N.C. Tax Revenue Official Site

Unauthorized Substance Tax Rates

Substance
Tax Rate
Minimum Quantity Before Tax is Due
Marijuana stems & stalks that have been separated from the plant. $.40 for each gram or fraction thereof More than 42.5 grams
Marijuana other than separated stems and stalks $3.50 for each gram or fraction thereof More than 42.5 grams
Cocaine $50.00 for each gram or fraction thereof 7 or more grams
Any other controlled substance that is sold by weight $200.00 for each gram or fraction thereof 7 or more grams
Any other controlled substance that is not sold by weight $200.00 for each 10 dosage units or fraction thereof 10 dosage units
Any low-street-value drug that is not sold by weight $50.00 for each 10 dosage units or fraction thereof 10 dosage units
Illicit Spirituous Liquor sold by the drink $31.70 for each gallon or fraction thereof No minimum
Illicit Spirituous Liquor not sold by the drink $12.80 for each gallon or fraction thereof No minimum
Mash $1.28 per gallon or fraction thereof No minimum
Illicit Mixed Beverages $20.00 on each 4 liters and a proportional sum on lesser quantities No m
Read more "Persons in possession of illegal substances must pay taxes on them, in North Carolina. Not kidding."

Good Samaritan Law for Ovedoses is clarified, effect 8/1/15

When you call 911 for help for a drug overdose, you and the person who overdoses are immune from prosecution for simple possession of small amounts of heroin, cocaine, drug paraphernalia, et cetera.  Contraband will be seized by the police, but possession of 1 gram or less shall not be prosecuted, pursuant to N.C.G.S. § 90-96.2. Limited Immunity for Samaritan. – A person shall not be prosecuted for any of the offenses listed in subsection (c3) of this section if all of the following requirements and conditions are met:
  • (1) The person sought medical assistance for an individual experiencing a drug-related overdose by contacting the 911 system, a law enforcement officer, or emergency medical services personnel.
  • (2) The person acted in good faith when seeking medical assistance, upon a reasonable belief that he or she was the first to call for assistance. (3) The person provided his or her own name to the 911 system or to a law enforcement officer upon arrival.
  • (4) The person did not seek the medical assistance during the course of the execution of an arrest warrant, search warrant, or other lawful search. Page 2 Session Law 2015-94 Senate Bill 154-Ratified
  • (5) The evidence for prosecution of the offenses listed in subsection (c3) of this section was obtained as a result of the person seeking medical assistance for the drug-related overdose.
The immunity described in subsection (b) of this section shall extend to the person who experienced the drug-related overdose if all of the requirements and conditions listed in subdivisions (1), (2), (4), and (5) of subsection (b) of this section are satisfied. Full text of the updated statute: Good Samaritan Law Clarified Read more "Good Samaritan Law for Ovedoses is clarified, effect 8/1/15"

Watch for Me, N.C.

Beginning, September 1, the Asheville Police Department will begin issuing citations for motorists, pedestrians, and cyclists who are not abiding by traffic laws as a part of the Watch For Me NC campaign. Here are just a few reminders: - Motorists: You are required by law to yield to pedestrians who are crossing at corners or in crosswalks. - Pedestrians: Did you know that there is no such thing as jaywalking? However, there are rules that must be followed, such as obeying traffic signals (walk/don't walk signs) and yielding to motorists when not in a crosswalk. - Cyclists: You are responsible for abiding by the same traffic laws as motorists. More Information. Read more "Watch for Me, N.C."

Narcan Opiate Overdose Emergency Kits Available for FREE

The Harm Reduction Coalition of of Asheville is providing much needed Narcan kits for those in need in Asheville.  They have kits that consist of two vials of Narcan and syringes with instructions, and they have a few kits of Narcan Auto injectors, for people who are not comfortable with needles.   You can buy Narcan kits at Pharmacies, but the auto injector kits are expensive, running $700-$800 .  This is life saving technology available for free.

Confidential Contacts for information and kits.

What is Narcan™ (naloxone)?

Narcan™ (naloxone) is an opiate antidote. Opioids include heroin and prescription pain pills like morphine, codeine, oxycodone, methadone and Vicodin. When a person is overdosing on an opioid, breathing can slow down or stop and it can very hard to wake them from this state. Narcan™ (naloxone) is a prescription medicine that blocks the effects of opioids and reverses an overdose. It cannot be used to get a person high. If given to a person who has not taken opioids, it will not have any effect on him or her, since there is no opioid overdose to reverse.

How does Narcan™ (naloxone) work? 

If a person has taken opioids and is then given Narcan™ (naloxone), the opioids will be knocked out of the opiate receptors in the brain. Narcan™ (naloxone) can help even if opioids are taken with alcohol or other drugs. After a dose of  Narcan™ (naloxone), the person should begin to breathe more normally and it will become easier to wake them. It is very important to give help to an overdosing person right away. Brain damage can occur within only a few minutes of an opioid overdose as the result of a lack of oxygen to the brain. Narcan™ (naloxone) gives concerned helpers a window of opportunity to save a life by providing extra time to call 911 and carry out rescue breathing and first aid until emergency medical help arrives.

Doesn’t a person need to be a medical professional to be able to spot a serious overdose and give Narcan™?  Research has shown that with basic training, nonmedical professionals, such as friends, family members or even concerned bystanders, can recognize when an overdose is occurring and give Narcan™ (naloxone), and in North Carolina, you are protected from civil liability for giving Narcan by the Good Samaritan Law.

 NCGS § 90-96.2 Good Samaritan/ Naloxone Access law, effective April 9, 2013, states that individuals who experience a drug overdose or persons who witness an overdose and seek help for the victim can no longer be prosecuted for possession of small amounts of drugs, paraphernalia, or underage drinking.  The purpose of the law is to remove the fear of criminal repercussions for calling 911 to report an overdose, and to instead focus efforts on getting help to the victim. The Naloxone Access portion of  NCGS § 90-96.2 removes civil liabilities from doctors who prescribe and bystanders who administer naloxone, or Narcan, an opiate antidote which reverses drug overdose from opiates, thereby saving the life of the victim.  NCGS § 90-96.2 also allows community based organizations to dispense Narcan under the guidance of a medical provider. As a result, officers may encounter people who use opiates and their loved ones carrying overdose reversal kits that may include Narcan vials, 3cc syringes, rescue breathing masks and alcohol pads.

Is the use of naloxone by non-medical people controversial?

No.  Recently the American Medical Association endorsed the training of lay people in the use of Narcan (naloxone) to prevent overdoses.  Also the director of Office of National Drug Control Policy,Gil Kerlikowski (the U.S. Drug Czar), remarked that naloxone distribution is a key component of overdose prevention.

Can Narcan™ (naloxone) harm a person?       

No. Narcan™ (naloxone) only affects people who are using opioids. If a person is not having an overdose but has been using opioids, Narcan™ (naloxone) will put them into immediate withdrawal. This can be very uncomfortable for the person, but is not life threatening.

Read more "Narcan Opiate Overdose Emergency Kits Available for FREE"

Taking your Driver’s License, even for a moment, may be Unconstitutional

  At 11:30 p.m. on 30 April 2012, Lilesville Police Chief Bobby Gallimore was on patrol. He noticed a parked car in a gravel area near Highway 74, and stopped to see if the driver needed assistance. Before approaching the car, Chief Gallimore ran the vehicle’s license plate through his computer and was advised that the car was owned by Keith Leak (defendant). Chief Gallimore spoke with defendant, who told him that he did not need assistance, and had pulled off the road to return a text message. Chief Gallimore then asked to see defendant’s driver’s license, and determined that the name on the license – Keith Leak – matched the information he had obtained concerning the car’s license plate. After examining defendant’s driver’s license, Chief Gallimore took it to his patrol vehicle to investigate the status of defendant’s driver’s license. It was undisputed that Chief Gallimore had no suspicion that defendant was involved in criminal activity. Defendant remained in his car while Chief Gallimore ran a check on his license and confirmed that his license was valid. However, the computer search revealed that there was an outstanding 2007 warrant for defendant’s arrest. Chief Gallimore asked defendant to step out of his car, at which point, defendant informed Chief Gallimore that he “had a .22 pistol in his pocket.” Defendant was arrested for possession of a firearm by a convicted felon; the record does not indicate whether defendant was ever prosecuted for the offense alleged in the 2007 arrest warrant State v. Leak (whole case.) TLDR: Court of Appeals (with a dissent) held that the defendant’s Fourth Amendment rights were violated when an officer, who had approached the defendant’s legally parked car without reasonable suspicion, took the defendant’s driver’s license to his patrol vehicle. This does not mean checkpoints are now illegal. Checkpoints are still legal, even though they are by definition, stops absent reasonable suspicion, because they are specifically authorized by statute, as long as they follow the applicable law. Read more "Taking your Driver’s License, even for a moment, may be Unconstitutional"

Expunctions, how do they work? What is a PJC?

Contrary to common belief, a PJC (Prayer for Judgment Continued) does not solve every problem.  They are not a silver bullet.  They are very helpful with certain kinds of traffic tickets, but they also indefinitely postpone a final judgment in a criminal case.  This can really hurt your future.  Without a final judgment, there cannot be an expunction. You should know that opportunities to expunge a criminal record in North Carolina are relatively rare. Instead, criminal records eligible for expunction in North Carolina are generally limited to the following three categories:
  • A first-time, nonviolent offense committed more than 15 years ago
  • A first-time offense committed under age 18/22
  • A charge that was dismissed or disposed “not guilty”
A CRIMINAL RECORD often gives rise to significant barriers to gainful employment, affordable housing, family unification, and a variety of other benefits and opportunities essential to productive citizenship. In North Carolina, an expunction is the destruction of a criminal record by court order. An expunction (also called an “expungement”) of a criminal record restores the individual, in the view of the law, to the status he or she occupied before the criminal record existed. With rare exception, when an individual is granted an expunction, he or she may truthfully and without committing perjury or false statement deny or refuse to acknowledge that the criminal incident occurred. The primary exception to this is for purposes of federal immigration. Please see North Carolina General Statutes §15A-151 for other exceptions. This summary provides details of the following twelve expunction statutes:
  • Juvenile Record………………………………… NCGS §7B-3200
  • Misdemeanor Under Age 18…………………… NCGS §15A-145
  • Gang Offense Under Age 18…………………… NCGS §15A-145.1
  • Controlled Substance Under Age 22 …………… NCGS §15A-145.2
  • Toxic Vapors Under Age 22……………............. NCGS §15A-145.3
  • Nonviolent Felony Under Age 18……….……… NCGS §15A-145.4
  • Nonviolent Offense…………………………...... NCGS §15A-145.5
  • Prostitution Offense………………………......... NCGS §15A-145.6
  • Charge Resulting in Dismissal or Not Guilty ….. NCGS §15A-146
  • Identity Theft………………………………….... NCGS §15A-147
  • DNA Records………………………………....... NCGS §15A-148
  • Pardon of Innocence……………………………. NCGS §15A-149
In addition, this summary provides the following information and resources:
  • Certificates of Relief……………………………. NCGS §15A-173
  • Indigent Fee Waiver
  • Steps to Submitting a Petition for Expunction
  • How to Read an ACIS Criminal Record Report
  • Petition for Expunction of Nonviolent Offense, Sample
  • Petition for Expunction of Dismissed Charges, Sample
  • Petitioner’s Affidavit, Worksheet
  • Affidavit of Good Character, Worksheet
  • Affidavit of Good Character
More information and source material. Questions?  Contact us and the attorneys at David R. Payne law firm would be happy to speak with you. Read more "Expunctions, how do they work? What is a PJC?"

Use of Force from the perspective of Police

By Lt. Dan Marcou
Picture the following hypothetical scenario: A chief at a press conference states, “Ladies and gentlemen I have gathered you here today, because police use of force cases are routinely mishandled by journalists and community leaders. It is my belief that journalists and community leaders may do a better job in this area if they have at least a basic understanding of what a justified use of force looks like.” There are three things the public needs to know about contacts with police. 1. Be courteous 2. Be cooperative 3. Be compliant Criminality, Not Color It is important for you to convey to the public that police officers pursue criminality, not color. Officers must have a reason to make contact with an individual. They must be able to explain later in court that they had either a reasonable suspicion or probable cause to believe the individual had committed or was about to commit an offense. The fact is that more than 95 percent of police contacts are handled without rising above the level of dialog. This is because most people are cooperative and compliant. This is the way it should be, because it is unlawful to resist and or obstruct an officer, while in the performance of his/her duty. If a person disagrees with a stop or an arrest, the place to argue the case vigorously is in a court of law, not on the street. Force Options When an officer meets resistance, officers are trained to use a level of force justified by the specific threat, or resistance they are presented with. For example, if a person pulls away from an officer making an arrest and snaps, “Don’t you touch me,” the officer can choose to apply a compliance holdto that person. These holds are designed to convince the person to comply. When a suspect is actively resisting, the officer can also choose to disengage and deploy a TASER or utilize pepper spray to overcome that resistance. It might surprise some people to discover that when a suspect strikes an officer, or even acts as if he or she is about to strike an officer, that officer can legally deliver impacts with what we call personal body weapons. Officers can punch, kick, or strike with elbows and/or knees to defend themselves and/or make an arrest. Officers can also choose to deliver baton impacts to targeted areas on the body. Officers can even strike a suspect more than once if once does not stop the suspect’s threat. If a suspect tries to hit an officer, don’t be surprised when that officer hits back. Use of Deadly Force I’ve never heard an officer say at the beginning of a shift, “I hope I get to shoot someone today.” While the vast majority of officers never fire their weapons in the line of duty, some have to. When an officer is faced with the threat of death or great bodily injury — or someone they are sworn to protect is faced with that same imminent threat — an officer is justified in using deadly force. There are three generally held misconceptions about deadly force that continually arise and need to be addressed: 1. An officer can shoot an unarmed man under certain conditions. An officer may have to use deadly force on an unarmed man who is larger, stronger, and/or attempting to disarm the officer, for example.  In the case of a suspect, who is battering an officer to the point that he or she may suffer death or great bodily harm, the use of deadly force is defensible. Police officers do not have to sustain a severe beating in the line of duty. Other factors that could justify an officer’s choice to utilize deadly force are the extent of that officer’s injury, exhaustion, or the number of assaultive adversaries the officer is confronted with. 2. An officer can, in certain conditions, shoot someone in the back. You see if a suspect is fleeing and their escape presents an imminent threat of death or great bodily harm to the community at large, the use of deadly force can be justified. On some occasions a round might enter through the back, because of the dynamics of the circumstance. 3. Officers are not — and never will be — trained to shoot to wound or shoot weapons out of subjects’ hands. These are not realistic options. Handguns are not accurate enough to deliberately attempt such things when lives are on the line. The Bottom Line From 2003 to 2012, 535 officers were killed in the line of duty in this country. Another 580,000 were injured in the line of duty. Entire Article on Use of Force by Police

About the author

Lt. Dan Marcou retired as a highly decorated police lieutenant and SWAT Commander with 33 years of full time law enforcement experience. He is a nationally recognized police trainer in many police disciplines and is a Master Trainer in the State of Wisconsin. He has authored three novels The Calling: The Making of a Veteran Cop , S.W.A.T. Blue Knights in Black Armor, and Nobody's Heroes are all available at Barnes and Noble andAmazon.com. Visit his website and contact Dan Marcou
Read more "Use of Force from the perspective of Police"

Ferguson, and Self Defense and the Law

"Stand Your Ground" self defense laws in North Carolina? Use of Deadly Force by the police or by anyone is a hot topic.  Here are some thoughts on Ferguson, and information about the law of self defense in North Carolina from the Experts.  Jeff Welty has written a thoughtful overview of the grand jury process and the what happened.  John Rubin has previously written on the Self Defense laws that were passed in North Carolina in 2011. "Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below," by Jeff Welty, UNC School of Govermnent. "North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language. The new statutes are part of S.L. 2011-268 (H 650), which applies to offenses committed on or after December 1, 2011."  Whole article here, by John Rubin, UNC School of Government. N.C.G.S. 14-51.2 Home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm. (a) The following definitions apply in this section: (1) Home. – A building or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence. (2) Law enforcement officer. – Any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, probation officer, post-release supervision officer, or parole officer. (3) Motor vehicle. – As defined in G.S. 20-4.01(23). (4) Workplace. – A building or conveyance of any kind, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, which is being used for commercial purposes. (b) The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply: (1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace. (2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (c) The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances: (1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person. (2) The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used. (3) The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual. (4) The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. N.C.G.S. § 14-51.3. Use of force in defense of person; relief from criminal or civil liability. (a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another. (2) Under the circumstances permitted pursuant to G.S. 14-51.2. (b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011-268, s. 1.)     Read more "Ferguson, and Self Defense and the Law"

I-40 Challenge means more Troopers for the Holidays.

Additional troopers on the road for Thanksgiving Drivers can use a few simple safety tips while traveling this holiday season:
  • Do not tailgate
  • Use turn signals
  • Maintain appropriate speed
  • Plan ahead/use your mirrors
  • Do not text while driving
  • Wear your seatbelt
The I-40 Challenge will be conducted Wednesday, Nov. 26, 11 a.m. - 11 p.m. and again on Sunday, Nov. 30, 9 a.m. to 9 p.m. Read more "I-40 Challenge means more Troopers for the Holidays."

Wildlife Violations may result in jail

ASHEVILLE – A federal magistrate says he's found evidence of judge shopping in a controversial bear poaching sting. U.S. Magistrate Judge Dennis Howell declined to hear a case set before him on Thursday, citing ethical and moral concerns. "I won't participate in this kind of activity," he said. The U.S. Attorney's Office agreed to dismiss two other cases before him after he raised concerns about prosecutors and defense attorneys making deals that would get defendants out of his courtroom for sentencing and before another judge. The case before Howell on Thursday was part of Operation Something Bruin, a joint federal-state poaching sting that has sparked outcry from the defendants who say they were unfairly targeted and punished. CITIZEN-TIMES Asheville judge rejects entrapment in bear poaching case Howell on Thursday started the hearing by asking defense attorney Brad Ferguson how he wanted to proceed on a new misdemeanor charge filed against his client, Robert Willie Bumgarner. He is charged with transporting a bear illegally in the Nantahala National Forest. Ferguson said he wanted to plead guilty before Howell but said sentencing would be before Judge Martin Reidinger at a later date as part of his deal with the government. The arrangement is not uncommon. Defendants in federal court are often asked at the end of a trial before a magistrate judge whether they would like to be sentenced before a district judge. But Howell raised concerns on Thursday. Howell then raised his concerns. "Gentlemen, I can tell you I have a problem," he said. "There is judge shopping that is going on in this case." Ferguson, under questioning from Howell, said he was following the plea agreement the government had offered on Nov. 14. The agreement is sealed. Howell, in court, indicated Ferguson and his client would be trading the dismissal of three petty offenses for a guilty plea in one misdemeanor. Howell noted that, by statute, Bumgarner could face more maximum time under the misdemeanor versus the petty offenses he was originally charged with. Each petty offense could mean a maximum of 6 months in prison. The misdemeanor could mean a max of one year. It is unclear whether Howell meant a concurrent sentence for the petty offenses. Judges have the authority to mandate sentences run at the same time or they can mandate they run back-to-back. He asked Ferguson why he would agree to such a deal. The attorney would only say he was following the agreement the government had offered. Howell then read in court an email that was about negotiations in a bear hunting case that does not appear to be related to Operation Something Bruin. In the message, Assistant U.S. Attorney Richard Edwards, who is handing the Something Bruin cases, tells defense attorneys in January he understands their clients would prefer not to be sentenced before Howell in a petty offense wildlife violations cases. "I am happy to ask that the sentence not include incarceration, but several attorneys and I have seen, in similar cases, that such a request by the government doesn't seem to carry much weight, with some defendants who didn't even end up killing a bear or assisting in actual killing nonetheless getting active 30-day sentences," he said in the email that Howell read in court. Edwards suggested dismissing the petty offense charges, which were set for bench trials before Howell in Central Violations Bureau court, and refiling the charges as misdemeanors, which would get them before Reidinger. Edwards was not in court on Thursday. See Citizen Times for whole story: Magistrate Judge Dennis Howell alleged Judge Shopping Read more "Wildlife Violations may result in jail"