G.S. 90-96 is one of the densest, most used, and most misunderstood statutes on the books. Let's try to unpack it a little bit. There are two distinct subsections under which cases may fall -- subsections (a) and (a1) -- and the two subsections are different in scope and in effect. We'll start with subsection (a). This is the descendant of the original version of G.S. 90-96. (The statute was enacted in 1971, and at that time, applied only to first convictions for possession of schedule III through VI substances -- the inclusion of paraphernalia, schedule II substances, and felony cocaine possession all came later.) Subsection (a) applies to folks with no prior drug or paraphernalia convictions who plead guilty to or are found guilty of (1) misdemeanor possession of Schedule II through VI drugs, (2) possession of drug paraphernalia, or (3) felony possession of less than one gram of cocaine. There are a couple of things to note here. First, it is up to the court whether to allow a defendant the benefit of the statute: the court "may" do so, even if the state thinks that it shouldn't (though the consent of the defendant is necessary), but it isn't required to do so, even if the state and/or the defendant think that it should. Second, G.S. 90-96 isn't limited to guilty plea cases: the court "may" allow a defendant the benefit of the statute whether the defendant pled guilty or was convicted after a trial. (Whether a judge is [...]
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