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:[poll id="25"] 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 [...]
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