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. . . (c) The following persons shall not be required to register AND MAY LAWFULLY POSSESS controlled substances under the provisions of this Article: . . . . . . (3) AN ULTIMATE USER or a person in possession of any controlled substance pursuant to a lawful order of a practitioner;
It is an undisputed fact that North Carolina Codes at 90-101(c)(3) is consistent with Federal Law at 21 U.S.C. 822(2)(C)(3) and provides that an ULTIMATE USER need NOT register AND MAY LAWFULLY POSSESS MARIJUANA OR ANY OTHER CONTROLLED SUBSTANCE. An ULTIMATE USER is defined by North Carolina Codes at 90-87 (27) and Federal Law at 21 U.S.C. 802(27) and clearly reads:
. . . "Ultimate user" means a person who lawfully possesses a controlled substance for his own use, or for the use of a member of his household, or for use in administration to an animal owned by him or by a member of his household.
Furthermore, it is NOT illegal to possess drug paraphernalia and nor is it illegal to USE drug paraphernalia unless you are using it with intent to deliver or manufacturing with intent to deliver as stated in 90-113.22 which reads in part:
90 -113.22. Possession of drug paraphernalia. (a) It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled
substance which it would be unlawful to possess, or to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess. . . . (Hey Officer Friendly, did you see me using my pipe?)
90-113.22 clearly reads: (1) IT SHALL BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY USE, OR TO POSSESS WITH INTENT TO USE , DRUG PARAPHERNALIA TO . . . MANUFACTURE. See also 90-113.23 which reads in part: 90 -113.23. Manufacture or delivery of drug paraphernalia.
(a) It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia knowing that it will be used to plant, propagate, cultivate, grow, harvest, MANUFACTURE, . . .
Furthermore, you cannot be charged with the mere using of the drug paraphernalia or possession with intent to deliver unless they first charge you with manufacturing, selling or delivering as stated in subsection 90-95 (a)(1) which reads in part:
90 -95. Violations; penalties. (a) Except as authorized by this Article, it is unlawful for any person: (1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance; . . . THE STATUTE IS VIOLATED ONLY IF POSSESSION IS ACCOMPANIED BOTH BY KNOWLEDGE of the nature of the act AND ALSO BY THE INTENT TO MANUFACTURE, DISTRIBUTE, OR DISPENSE. United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). UNITED STATES v. JEWELL, 532 F.2d 697 (9th Cir. February 27, 1976.) (It is crystal clear that 21 U.S.C. 841(a)(1) is worded in the conjunctive and.)
United States v. Jewell, supra, makes it clear that you cannot be charged with the lessor but included offense of possession unless they also charge you with manufacturing with intent to distribute.
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