In an earlier post, I wrote that simple possession of fentanyl was a misdemeanor Schedule II offense under then-current law. No more. Effective Dec. 1, 2021, fentanyl possession in any amount is treated as a felony. I have been receiving calls about the change and thought a brief post would be useful. Read on for the details. Fentanyl and the fentanyl analogue carfentanil are classified as Schedule II controlled substances. See G.S. 90-90(2)(e) and (h). As I wrote in the first post, possession of a schedule II substance is generally a misdemeanor, with certain exceptions. Under the old law, the exceptions included any amount of cocaine, phencyclidine (“PCP”), methamphetamine, or amphetamine, (among other exceptions tied to dosage unit). See G.S. 90-95(d)(2) (2020). In case you missed it, S.L 2021-155 made various changes to chapter 90. Among other revisions, G.S. 90-95(d)(2) was amended to include fentanyl and carfentanil alongside the other schedule II substances for which felony liability attaches regardless of the amount. In relevant part, the amended section of the statute reads: If the controlled substance is methamphetamine, amphetamine, phencyclidine, cocaine, fentanyl, or carfentanil and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof . . . the violation shall be punishable as a Class I felony. G.S. 90-95(2) (2021) (emphasis added). The change seems straightforward enough, but there are at least a couple of wrinkles to consider. Cases Arising Before Dec. 1, 2021. The old law applies for cases arising before December 1, 2021, and simple fentanyl possession [...]
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