New Fine Only Misdemeanors, and the Giant Green Elephant in the Room

   As of December, 2013, people in NC who are charged with class 3 misdemeanors are punished with a "fine only", provided they don't have 4 or more prior misdemeanor charges on their record. This change was primarily to save the state tons of money, because now these people charged with class 3 misdemeanors can no longer apply for a court appointed attorney if they are poor. This is because with "fine only" punishment, there is supposedly no probation or jail potential, thus no Sixth Amendment right to counsel is triggered. 

  This change affects a number of traffic related offenses such as Driving While License Revoked and Speeding (Most people had no idea Speeding was a class 2 crime, now class 3).  Possession of less than 1/2 oz. Marijuana is now a "fine only" crime. I think it is important to mention Marijuana in particular, because even though a conviction of less than 1/2 oz. had been a class 3 previously, it carries a much stiffer penalty of stigma, than say, speeding. Of course speeding, say 90mph,  is considerably more dangerous than pot possession for obvious reasons, but speeding probably won't affect your ability to get a job. Paying the fine for class 3 possession of Marijuana is a drug conviction!

   Any criminal attorney will tell you that marijuana possession eats up a ton of District Court in NC every day. If you don't believe, just check the calendars. The new changes to the law won't really help that because you still have to go to court, but my problem with this is that  the legislature, in an attempt to save budget, has made it appear that you can just pay your fine for simple possession under 1/2 oz. and move right along. It gives the appearance of insignificance, i.e., you don't need a lawyer, you can't be jailed, its just a fine. Heck, it's practically legal, right? No, not really. Sensible legislation would have rendered possession of less than .5 oz. a civil infraction at most, but since when is legislation sensible?

   If you are charged with class 3 marijuana possession and can't beat the charges at trial, and you are advised properly, instead of paying the fine you'll probably end up with a 90-96 request, which means you'll be on probation. It can be unsupervised probation, but it isn't always. 90-96 is all so you can avoid the drug conviction on your record by ultimately earning a dismissal via 90-96 participation and completion of its requirements. If you just pay the fine, you'll leave with a drug conviction. So why would you just pay the fine? Well, if you have drug or paraphernalia priors, you can't benefit from 90-96.

   It's really a silly system when you think about it, because strong armed enforcement techniques have not, and probably will not be halting for some time. I've already had clients, since the change, threatened on the side of the road with drug dog searches, they are commanded to hand over any contraband or threatened to face search, seizure and arrest. If the charge is fine only, It really shouldn't be an arrest-able offense. I mean sure, maybe the trunk is full with lbs. and lbs. of contraband, but if this is the stance we have and the technique we are going to allow law enforcement to use, why are lawyers not warranted?

   Your 4th amendment rights are being jeopardized when you are detained and searched based on suspicion of  potentially "fine only" contraband. Sure, if the search only turns up .5 oz or less it's "fine only", but it doesn't prevent arrests or threats of arrests for not consenting to the search. It also doesn't take away what I believe is your right to have a skilled advocate analyze the situation to determine if there was a breach of your rights, even if you are poor.

   Ultimately, I think the changes will save money on appointed counsel, but it does nothing to curb the impact of a silly little "crime", and its effects on many good people who are subjected to the charges. On the bright side, if law enforcement has used coercive techniques, or questionable search and seizure tactics, you have every incentive now to challenge the resulting charges at trial. If you lose, at worst you pay a fine. Problem is, you have to be able to afford counsel AND the fine. The incentive for poor people is to forgo their rights to a rigorous defense and just pay the fine out. That type of incentive system doesn't reflect liberty. In the mean time, those of us who understand how bananas these laws are will keep working, and waiting for a reasonable solution. If you're facing charges for a victimless crime of class 3 possession or any drug charges, contact an Asheville drug attorney today.


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