134.2Deferrals and Discharges
- First-offenders charged with drug possession or paraphernalia “shall” receive a conditional discharge under G.S. 90-96(a) unless both the judge and the state agree that the defendant is not appropriate for it.
- A defendant charged with drug possession or paraphernalia also “may” receive a conditional discharge under G.S. 90-96(a1) if he or she has no prior convictions other than convictions more than 7 years before the current offense, or convictions which were only for PWISD, possession, paraphernalia, or toxic vapors.
- Defendants charged with gang offenses or prostitution may be eligible for a conditional discharge under terms specific to those offenses.
This entry summarizes the conditional discharge statutes specific to certain offenses.
For more general information on the effects of a conditional discharge, defendant's eligibility, length of the probationary term, enforcement of probation violations, etc., see the preceding entry on Deferrals and Discharges – General.
Controlled Substance Offenses
- Mandatory Conditional Discharge - G.S. 90-96(a)
a) Whenever a defendant who has not previously been convicted of:
- any felony;
- a prior controlled substances offense under Article 5 of Chapter 90; or
- a similar controlled substance offense (including paraphernalia) under another state or federal law;
b) is convicted of, or pleads guilty to:
- a misdemeanor for possession of a Schedule I-VI controlled substance (or paraphernalia) under Article 5 of Chapter 90; or
- a felony under G.S. 90-95(a)(3) (possession of a controlled substance);
c) the court shall defer entry of the finding of guilt, and instead place that defendant on probation under a conditional discharge agreement, unless the court makes written findings, and the district attorney agrees, that the defendant is “inappropriate” for a conditional discharge. See State v. Dail, 255 N.C. App. 645 (2017); see also AOC-CR-619D (conditional discharge, effective 12/1/16). This includes imposing probation and conditional discharge for offenses which would otherwise be punishable only by a fine. G.S. 90-96(a).
In other words, the court must give an eligible first-time drug offender a conditional discharge under this statute, unless both the court and the state agree that the defendant is an “inappropriate” candidate for it, based on “factors related to the offense.” For more discussion of this issue, see Jamie Markham, "G.S. 90-96(a) Is Mandatory Unless both the Judge and the State Say No,” N.C. Criminal Law Blog, Sep. 21, 2017.
The court may impose such reasonable terms and conditions of probation as it deems necessary, which may include a drug education program. Failure to complete probation will result in entry of the adjudication of guilt and proceeding on to sentencing as usual; successful completion of the probation will result in a dismissal of the charge.
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Discharge and dismissal under G.S. 90-96(a) “may occur only once with respect to any person,” so the state and the court need to verify that the defendant has not already been through this process before placing him or her on a new discharge agreement. The defendant’s eligibility cannot be determined solely by looking at his or her criminal record, because if the prior discharge agreement was successful it will only show up as a dismissal (or not show up at all, if it has been expunged). Therefore, before entering into a conditional discharge agreement, the court should use form AOC-CR-237 (“Request for Report of Conditional Discharge”) to submit a request to AOC to “determine in advance whether the defendant has a prior conditional discharge or placement on probation that would disqualify him/her for conditional discharge upon conviction of the present charge(s).” AOC maintains records of completed discharge agreements which are not publicly available, and can verify whether the defendant is truly eligible or not.
- Discretionary Conditional Discharge - G.S. 90-96(a1)
Upon a “first conviction” for any offense which qualifies under G.S. 90-96(a) (see above: misdemeanor or felony drug possession, paraphernalia), the court “may” place a defendant on probation under a conditional discharge agreement. See AOC-CR-627D (conditional discharge, effective 12/1/16). Under this version of the conditional discharge agreement, the term of probation must be for at least one year, and it must include enrollment and successful completion of an approved drug education program (unless the court makes written findings that certain statutory exceptions apply). Failure to complete the education program or a violation of the other conditions of probation constitutes grounds for revocation of probation and proceeding to sentencing. If the defendant successfully completes the education program and period of probation, the court must dismiss the charges – in certain circumstances, the charges may also be expunged. See G.S. 90-96(b)-(d).
In determining “first conviction” eligibility under this statute, a defendant is eligible as long as he or she has not been convicted of an offense under G.S. 90-95(a)(1) through (3) (PWISD, simple possession), 90-113.10, 90-113.11, or 90-113.12 (toxic vapors), or 90-113.22 or 90-113.22A (drug paraphernalia), nor received a discharge and dismissal under G.S. 90-96 or 90-113.14, for which the date of offense was within seven years of the current offense date.
See the Practice Pointer above regarding using AOC-CR-237 (“Request for Report of Conditional Discharge”) to determine whether the defendant has ever had a prior discharge agreement. See also G.S. 15A-1341(a5), which is a conditional discharge for purposes of allowing an eligible defendant to participate in a drug treatment court program. AOC-CR-633D (effective 12/1/16).
Other Specific Offenses
Most misdemeanors and class H and I felonies may be resolved through a general conditional discharge under G.S. 15A-1431 if the prosecutor determines that such a resolution is appropriate. For more information, see the preceding entry on Deferrals and Discharges – General Offenses. Some offenses also have their own specific statutory conditional discharge procedures:
- Gang Activity
If a defendant who has no prior convictions other than minor traffic offenses pleads to or is found guilty of (i) a Class H felony under Chapter 14, Article 13A (Criminal Gang Suppression Act), or (ii) an “enhanced offense” under G.S. 14-50.22 (misdemeanor offense punished one class higher if done for benefit of the gang), and if the defendant was under the age of 18 when the offense was committed, then the court “may” place the defendant on probation, subject to a conditional discharge agreement. See G.S. 14-50.29; AOC-CR-621D (conditional discharge, effective 12/1/16). The term of probation must be for at least one year. See G.S. 14-50-29(b). As with other conditional discharges, failure to successfully complete the probation results in entry of the adjudication of guilt and proceeding to sentencing. See G.S. 14-50.29(c). Successful completion results in a dismissal of the charge, and the defendant may be eligible for expunction. See G.S. 14-50.29(d).
- Threats/False Reports of Mass Violence
Effective December 31, 2018, there are two new types of offenses related to communicating threats: communicating a threat of mass violence on educational property and communicating a threat of mass violence at a place of religious worship. See G.S. 14-277.6; G.S. 14-277.7. Defendants who are less than 20 years old at the time of the offense and who have no prior convictions other than traffic violations are eligible for a discretionary deferral on these offenses, pursuant to G.S. 14-277.8. Probation ordered as part of this deferral must be supervised, must be for at least one year, and must include at least 30 hours of community service, a mental health evaluation, and compliance with any recommended treatment.
If a defendant who has not previously been convicted “for a violation of this section” (i.e., defendant may have other prior convictions, but not for prostitution) pleads guilty to or is found guilty of a violation of this statute, the court “shall” place the defendant on a conditional discharge agreement, as long as the defendant consents. See G.S. 14-204(b)(1); AOC-CR-628D (conditional discharge, effective 12/1/16); see also G.S. 15A-1431(a3). The probation must be for a period of 12 months, and the probation “shall” include certain conditions (e.g., drug testing, complete vocational assessment, attend at least 10 counseling sessions) and it “may” include various other conditions (e.g., reside in a treatment facility, report to a social services agency, or support dependents). See G.S. 14-204(b)(3), (4). As with other conditional discharges, a violation of probation will result in entry of the adjudication of guilt and proceeding to sentencing; successful completion of probation will result in a dismissal of the charges. See G.S. 14-204(b)(5), (6). A defendant is only eligible for one discharge and dismissal under this statute. See G.S. 14-204(b)(8).
- Toxic Vapors
If a defendant pleads guilty to, or is found guilty of, inhaling or possessing toxic vapors in violation of Article 5A of Chapter 90, the court “may” place the defendant on probation under a conditional discharge agreement. See G.S. 90-113.14. The eligibility requirements, procedures, and effects of a conditional discharge under either section (a) or (a1) of this statute are analogous to the provisions of G.S. 90-96(a) and (a1) described above, except that they state the court “may” place a defendant on a conditional discharge for these offenses, as opposed to using the “shall…unless” provision of G.S. 90-96(a).
Defendants convicted of cyber-bullying for offenses committed before age 18 are eligible for a discretionary conditional discharge under G.S. 14-458.1(c). A similar conditional discharge for students convicted of cyber-bullying of a school employee is available under G.S. 14-458.2(d).