On March 4, 2026, the North Carolina Court of Appeals issued its opinion in State v. Banks, No. COA25-432, a case that highlights just how aggressively the State pursues opioid trafficking charges — and how difficult it can be to assert the “ultimate user” exemption under North Carolina law. The case offers important lessons for anyone who possesses prescription opioids that were not prescribed to them, even in seemingly sympathetic circumstances.
The Facts Behind the Trafficking Charge
The defendant in State v. Banks was a long-time employee of the Yancey County Sheriff’s Office who worked at the county jail. After an informant tipped off the Sheriff’s Office, detectives investigated and ultimately recovered sixty-five prescription pills from the defendant’s home. The pills were found in labeled prescription bottles on his kitchen counter and inside a kitchen cabinet. Each bottle bore a label indicating the medication — acetaminophen and oxycodone, the generic equivalent of Percocet — had been prescribed to the defendant’s late wife, who had passed away in December 2021.
A forensic scientist confirmed that forty-one of the recovered pills contained oxycodone and weighed a total of 14.99 grams. Under North Carolina’s trafficking statute, N.C. Gen. Stat. Section 90-95(h)(4)(b), possessing more than fourteen grams of an opioid triggers a trafficking by possession charge. The defendant was indicted on trafficking in opioids by possession, possession with intent to sell or deliver a Schedule II controlled substance, and maintaining a dwelling for keeping or selling controlled substances.
The “Ultimate User” Exemption — and Why It Failed
The central legal question in Banks involved the so-called “ultimate user” exemption. Under N.C. Gen. Stat. Section 90-101(c)(3), a person may lawfully possess a controlled substance if they qualify as an “ultimate user.” The statute defines an ultimate user as someone who lawfully possesses a controlled substance for their own use or for the use of a member of their household.
The defendant argued the trial court should have instructed the jury on this exemption, either on its own initiative or at defense counsel’s request. He also raised an ineffective assistance of counsel claim, arguing his lawyer was deficient for failing to request the instruction. The Court of Appeals rejected both arguments. The court emphasized that for a jury instruction to be required on a particular defense, there must be substantial evidence supporting each element of that defense when viewed in the light most favorable to the defendant. Here, the evidence showed the pills were prescribed to someone else, the defendant had admitted to giving pills to other people, and he had attempted to exchange medication for sexual favors on multiple occasions. Because the record did not support a finding that the defendant possessed the oxycodone for his own use or for a member of his household, the court held the ultimate user instruction was not warranted.
This ruling is significant because it underscores a harsh reality in North Carolina drug prosecutions: possession of a family member’s leftover prescription medication can lead to serious trafficking charges, particularly when the weight threshold is met and there is any evidence the pills were shared with others.
Lessons for North Carolina Residents
Many people do not realize that holding onto a deceased loved one’s prescription medication can expose them to criminal liability. The opioid crisis has driven law enforcement and prosecutors across North Carolina to take an aggressive posture toward any possession of opioids above statutory thresholds, regardless of how the drugs were obtained. In Banks, the defendant was not accused of purchasing opioids on the street or running a distribution network. He possessed pills that had been lawfully prescribed to his wife during her illness. Yet because those pills were not prescribed to him, and because the total weight exceeded fourteen grams, he faced — and was convicted of — opioid trafficking.
The case also illustrates the importance of understanding the burden of proof when it comes to statutory exemptions. Under N.C. Gen. Stat. Section 90-113.1(a), the burden of proving an exemption under the Controlled Substances Act falls on the defendant, not the State. This means the State does not need to disprove that you are an ultimate user. If you are charged and wish to rely on that defense, you must affirmatively establish it with evidence — and as Banks demonstrates, any indication that the drugs were shared with or distributed to others can undermine that claim entirely.
Why Experienced Defense Counsel Matters
The Banks case also highlights the critical role that experienced defense counsel plays in drug trafficking cases. Trial strategy decisions — such as whether to request specific jury instructions — can make or break a case. While the Court of Appeals found that defense counsel was not ineffective here because the instruction would not have been supported by the evidence, the analysis shows how closely appellate courts scrutinize these strategic choices. In cases where the evidence more clearly supports an ultimate user defense, failing to request the instruction could constitute reversible error.
As a Board Certified Specialist in Criminal Law, Damon Chetson understands the intricacies of North Carolina’s drug trafficking statutes, the available defenses, and how to build the strongest possible case at trial and on appeal. Every criminal case involves human circumstances that deserve careful, thorough legal analysis.
Facing Drug Charges in North Carolina?
If you or someone you know is facing opioid trafficking charges or other drug offenses in North Carolina, the stakes are extraordinarily high. Trafficking convictions carry mandatory minimum prison sentences and substantial fines. Having an experienced criminal defense attorney evaluate your case early can make a significant difference in the outcome. Contact The Chetson Firm today for a consultation to discuss your case and explore your legal options.