- Associated Press - Friday, June 9, 2017

RALEIGH, N.C. (AP) - Just because a man previously convicted of methamphetamine-related crimes didn’t know it was now illegal for him to buy over-the-counter allergy medicine given his criminal history doesn’t mean his rights were violated, a divided North Carolina Supreme Court ruled Friday.

A majority of the seven justices reversed a lower appeals court decision overturning the conviction of Austin Lynn Miller for buying one box of capsules at a Walmart in Boone in early 2014, barely a month after an expanded purchase prohibition law took effect.

Miller was barred from buying anything beyond minuscule amounts of the medicine because it contained pseudoephedrine, which can be used to make meth, due to his 2012 convictions on possession of meth and keeping a car or house to sell controlled substances.

A jury convicted Miller for possessing the allergy medicine. He received a suspended sentence with probation.

State law already required the nonprescription medicine to be kept behind the counter and mandated electronic record keeping to monitor whether a meth lab was buying up the drugs. Often purchasers follow screen prompts saying they understand buying the medicines in large quantities or too frequently is illegal.

Miller’s lawyer argued his client’s due process rights were violated because he had no knowledge the purchasing law had changed in December 2013 and that he didn’t intend to violate the law. There were no signs in pharmacies about the changes, either, the attorney said.

A three-judge panel of the Court of Appeals ruled unanimously in March 2016 the law was unconstitutional as it applied to a convicted felon like Miller who failed to receive notice from the state that their “otherwise lawful conduct is criminalized” unless there’s other proof the person knew about the law.

State attorneys argued that Miller’s ignorance of the law was no excuse and that it was his intentional action of purchasing the medicine that led to the crime.

Writing the majority opinion, Justice Sam Ervin IV sided with the state and rejected Miller’s arguments that the retail purchase was an innocuous act that raised no alarms about whether he was breaking the law.

Miller’s conviction “rests upon his own active conduct rather than a ’wholly passive’ failure to act,” Erwin wrote, citing the longstanding exemption to the concept that one can’t avoid breaking the law simply by being unaware of it.

The “defendant has failed to establish that his conduct in possessing pseudoephedrine was ’wholly passive,’” Stein added.

Justice Michael Morgan wrote a dissenting opinion that the narrow exception to ignorance of the law applied in this matter.

“There are no circumstances here which would lead the reasonable individual to know, or even inquire about, a duty to refrain from the possession of pseudoephedrine due to a recent change in the law which turned defendant’s heretofore legal possession of the substance into a criminal offense,” Morgan wrote. Justice Cheri Beasley joined in Morgan’s opinion.

Miller’s lawyer, Jeff Gillette, didn’t return a phone call Friday at his office seeking comment. Attorney General Josh Stein’s office had no comment beyond saying lawyers were reviewing the opinion.

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