Prior Possession of Drug Paraphernalia

It’s December 1. That means a number of new laws come into effect today. WRAL has a good rundown here, while the School’s annual summary of legislation of interest to court officials offers a more comprehensive review. For today’s post I’d like to focus on a sentencing question related to one of the changes that kicks in today: the reduced punishment for possession of marijuana paraphernalia. Under prior law, possession of any type of drug paraphernalia was a Class 1 misdemeanor. Effective for offenses committed on or after December 1, new G.S. 90-113.22A creates the Class 3 misdemeanor of possession of marijuana paraphernalia. S.L. 2014-119, section 3. Existing G.S. 90-113.22 remains a Class 1 misdemeanor, but now applies only to controlled substances other than marijuana. The change is prospective and offers no relief to defendants convicted for acts that occurred before today. I have been asked several times how this change impacts defendants with prior convictions for possession of drug paraphernalia (PDP) who are now being sentenced for a new offense. Does the reduction in punishment for marijuana paraphernalia mean that some (or all?) prior PDP convictions should be considered as Class 3 misdemeanors, instead of Class 1, for sentencing purposes? It turns out to be a tricky question, and I don’t think there’s a clear answer. First, let’s focus on something we know: the change makes no difference for a defendant with a prior PDP conviction who is now being sentenced for a new misdemeanor. All prior convictions count the [...]