North Carolina’s HOPE Act and its Effects on Criminal Drug Possession Charges

The Heroin and Opioid Prevention and Enforcement (HOPE) Act of 2018 was enacted in response to the growing opioid addiction crisis in North Carolina. The Act is seen as an extension to its predecessor, the Strengthen Opioid Misuse Prevention (STOP) Act of 2017, which aims to reduce the number of people who become addicted to prescription opioids. Between 1999 and 2016, prescription opioids claimed the lives of more than 12,000 North Carolinians and the economic costs for overdose has been estimated to be greater than $ 1.5 billion. To combat the epidemic, the North Carolina legislature, through the HOPE Act, created a “certified diversion investigator” to aid law enforcement officials in their investigation of drug crimes.

The HOPE Act amended the North Carolina Controlled Substances Act, by adding a new section, which created the role of certified diversion investigator. A certified diversion investigator is associated with a North Carolina qualified law enforcement agency. This investigator shall request and receive from a pharmacy, copies of prescriptions, and records related to prescriptions, in connection with a bona fide active investigation related to the enforcement of laws governing licit or illicit drugs. In order to make their request, the investigator must provide in writing or electronically all of the following:

• The certified diversion investigator's name and certification number.
• The name of the qualified law enforcement agency for whom the investigator works.
• The case number associated with the request.
• A description of the nature and purpose of the request.
• The first name, last name, and date of birth of each individual whose prescription and records related to the prescription the investigator seeks, including, when appropriate, any alternative name, spelling, or date of birth associated with each such individual.

The North Carolina State Bureau of Investigation and the Diversion and Environment Crimes Unit shall be informed by the investigator of any request made and provide the agencies with a copy of the request. When a certified diversion investigator submits a request, the pharmacy, upon receipt, must provide copies of the requested prescription and records related to the prescription no later than two business days after receipt.

The North Carolina Controlled Substances Reporting System Act was amended via the HOPE Act, providing for the release of data in the controlled substance reporting system to local police officers assigned to investigate the enforcement of laws governing illicit drugs pursuant to a lawful court order specifically issued for that purpose. Advocates, however, are concerned that the HOPE Act bill allows law enforcement too much access to patient information, violating the privacy, HIPAA, and Fourth Amendment rights of North Carolina residents.

The Controlled Substance Reporting System contains information from any doctor who has recorded prescribing controlled substances to their patients. The misuse of any obtained information by law enforcement officials would result in felony charges. In addition, law enforcement are only able to view the information they request, which law makers say will prevent fishing expeditions by police. However, because warrants are not needed when requesting an individual’s medical record information, there remains the fear that local law enforcement officials could view this information regardless of its relevance to a pending investigation.

On the other side, supporters say that steps need to be taken to tackle opioid abuse and that the HOPE Act is a solid first step to achieving this goal. People are continuing to die from opioid use and officers say that they are not equipped with the tools they need to address the problem. In addition, the bill promises the issuance of $10 million for community-based addiction treatment and funds for more naloxone – medication used for the emergency treatment of known or suspected opioid overdose – for law enforcement and the state’s drug take-back program, which allows individuals to dispose of unused medicines in safe locations. North Carolina lawmakers say the money is designated to be issued for the 2019-2020 budget year.

The HOPE Act is still relatively new, preventing legal professionals from commenting on its legal effects on individuals facing criminal prescription drug charges. The fact of the matter is however, that because local law enforcement need not obtain a warrant to request an individuals medical records when conducting an investigation, police can obtain the medical records of any individual facing such charges. Any information obtained by local law enforcement from the Controlled Substance Reporting System may be presented as evidence in a criminal proceeding. In order to understand the information gathered from the reporting system and create strong defense strategies, it is important for individuals facing criminal prescription drug charges to reach out to an experienced criminal defense attorney as soon as possible.

At Arnold & Smith, PLLC our criminal defense attorneys have extensive experience in representing clients facing prescription drug charges. Call our office at 704.370.2828 or fill out our contact form online to schedule an initial consultation with one of our skilled criminal defense attorneys to discuss your legal options. Now taking cases throughout North Carolina with offices in Charlotte, Lake Norman, and Union County.