North Dakota Drug Crimes

Simple Possession in North Dakota

Controlled Substances (Excluding Marijuana)

North Dakota state law makes it illegal to possess unlawful controlled substances like cocaine, LSD, opiates, and methamphetamine. This prohibition includes precursors used for the manufacture and cultivation of illegal controlled substances, as well as paraphernalia for the use of these drugs. While N.D. Cent. Code Section 19.03.1-23 (effective 8/1/19) makes a first offense of possession of a controlled substance a conviction punishable as a Class A misdemeanor, subsequent convictions constitute a Class C Felony. If the offense is committed within 1,000 feet of a school, the offense will be charged as a Class B Felony.

Punishment (Controlled Substances Excluding Marijuana)

• Misdemeanor, Class A (1st offense simple possession of a controlled substance): Maximum up to 1 year of incarceration and/or fine of $3,000
• Felony, Class C (Subsequent offenses of simple possession of a controlled substance): Maximum up to 5 years of incarceration and/or a $5,000 fine
• Felony, Class B (Possession of a controlled substance within 1,000 feet of a school): Maximum up to 10 years of incarceration and/or a $10,000 fine 

Marijuana

Although North Dakota has a medical marijuana law and has “decriminalized” possession of a small amount of marijuana effective 8/1/19, marijuana possession remains a criminal offense under federal law. Despite some misconceptions, non-medicinal use of marijuana has not been “legalized” within our state though possession of less than ½ ounce constitutes an infraction that will not result in jail time. Possession of a greater amount of marijuana constitutes a misdemeanor or felony drug possession depending on the amount:

½ ounce – 500 grams: Class B Misdemeanor punishable by a maximum of up to 30 days incarceration and/or $1,500

More than 500 grams: Class A Misdemeanor punishable by a maximum of up to 1-year incarceration and/or $3,000 fine

[See N.D. Cent. Code § 19-03.1-23 Effective 8/1/19]

Possession of a Controlled Substance with Intent to Distribute

The offense of possession with intent to deliver or distribute amounts to a much more serious criminal offense carrying harsher penalties. Generally, intent to distribute (also known as intent to deliver or intent to sell) will be charged as a felony based on a large enough quantity of the controlled substance or other evidence indicating an intent to distribute, such as large amounts of cash, scales, paraphernalia, and/or packaging materials.

A conviction with intent to distribute constitutes a Class B Felony when the controlled substance involves most Schedule I, II, or III drugs. Schedule IV drugs involve exposure to a Class C Felony while possession of Schedule V drugs constitutes a Class A Misdemeanor. [See N.D. Cent. Code § 19-03.1-23 Effective 8/1/19]. The criminal offense of intent to distribute is a serious crime that can result in a lengthy term of imprisonment and substantial fines for even a first offense. For example, a first conviction of possession with intent to distribute heroin can result in a penalty of up to 10 years in state prison and a fine up to $10,000.

Possession of Drug Paraphernalia to Use or Store Drugs [N.D. Cent. Code § 19-03.4-03 Effective 8/1/19]

Schedule I, II, and III Drug Paraphernalia

Many people charged with drug crimes also will face charges of possession of drug paraphernalia charges. Individuals charged with this offense should seek legal advice immediately because the law in this area is both complex and relatively ambiguous. North Dakota defines paraphernalia essentially to include any materials, products, or equipment that are used or intended for using or creating a certain drug. However, many innocent objects can be considered paraphernalia like tin foil, food scales, baggies, and cash. 

Because the state legislature recognized that the statute is both vague and broad, it has amended the statute to include 13 categories of items. Since even this specification was too vague, the legislature then added a lengthy list of guidelines to use when evaluating the categories. The bottom line is that these struggles in providing a clear definition of paraphernalia create a lot of room for reasonable doubt, especially if the alleged offending material does not have drug residue and was not found near a controlled substance.

Until recently, you could be charged with a felony, but possession of paraphernalia to use a Schedule I, II, or III controlled substance (other than marijuana) is now charged as a Class A Misdemeanor. However, subsequent offenses can be charged as a Class C Felony. 

Possession of Paraphernalia to Use Marijuana

When the paraphernalia is for the use or storage of marijuana, a first offense (beginning in August of 2019) constitutes an infraction subject to a fine but not jail time. However, repeat convictions can result in jail time depending on the specific circumstances. 

Special Note Regarding Federal Drug Charges

If you are arrested for possession of a large quantity of a controlled substance, you could face federal charges related to drug trafficking. While a criminal prosecution related to drug charges is never a welcome experience, federal charges pose an especially perilous situation. Federal cases do not offer the same opportunities for lenient sentencing, diversion, and probation. Federal prosecutors also tend to be exceptionally skilled and served by powerful federal investigative agencies like the FBI, DOJ, DEA, and others with sophisticated law enforcement tools and technology at their disposal.

Although recent reforms have eased the hardships imposed by the federal sentencing guidelines and their mandatory minimum penalties, sentencing in federal courts continues to be much harsher than most state court cases. It is even possible to be charged with both state and federal charges. If you have been charged with a federal drug crime, you should speak to an experienced criminal defense attorney with experience fighting drug charges in federal court.