dissenting.
I respectfully dissent from the majority’s opinion which reverses the trial court and remands.
Initially, it should be noted that this Court’s analysis is based upon Chapter 105, Article 2D of the North Carolina General Statutes as it existed on 15 September 1994, the date on which Mr. Ballenger possessed the drugs. Subsequent changes were made to the statute by amendments. Such changes could render my analysis or that of the majority incorrect for cases arising after such changes. However, since the tax was assessed prior to the amendments, we do not address those provisions in the 1995 statute which were added or amended.
In its Kurth Ranch opinion, the United States Supreme Court did not hold that in order to find a tax violative of the Double Jeopardy Clause, the tax must contain each of the punishment aspects in the Montana Dangerous Drug Tax. Rather, the Court held that “[t]aken as a whole, [the Montana] drug tax is a concoction of anomalies, too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis.” Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. —, -, 128 L. Ed. 2d 767, 781 (1994). Violation of the Double Jeopardy Clause “can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.” United States v. Halper, 490 U.S. 435, 447, 104 L. Ed. 2d 487, 501 (1989). In Kurth Ranch, the Court followed an analysis similar to that set out in Halper, lookipg at the application of the assessment imposed by Montana and holding that it was unconstitutional as applied. Similarly, analysis of the application of the North Carolina Controlled Substance Tax as applied in the instant case leads to what I believe is an inescapable conclusion that criminal conviction following assessment of the tax is additional punishment violative of the Double Jeopardy Clause. For this reason, I dissent.
It should be recognized that the State could prosecute defendant Ballenger criminally if it had not previously punished him for the same offense through the assessment of the tax, or if it had assessed the tax in the same proceeding which resulted in his conviction. See Kurth Ranch, 511 U.S. at -, 128 L. Ed. 2d at 778. The fact that defendant was criminally charged for the same conduct for which the North Carolina Controlled Substance Tax was previously assessed requires that we analyze the tax under a Double Jeopardy analysis.
*186The first question presented is whether a civil sanction, more specifically a tax, may constitute punishment for purposes of Double Jeopardy. The Supreme Court has held that a civil sanction may constitute punishment when “the sanction as applied in the individual case serves the goals of punishment.” Halper, 490 U.S. at 448, 104 L. Ed. 2d at 501. The traditional goals of punishment include retribution and deterrence. “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment . ...” Id. at 448, 104 L. Ed. 2d at 502. A defendant who has already been subjected to such a sanction may not then be punished a second time through criminal prosecution. Whether an assessment is called “civil” or “criminal” or “tax” or “sanction” does not control when determining whether the assessment is violative of the Double Jeopardy Clause. See Kurth Ranch, 511 U.S. at -, 128 L. Ed. 2d at 779; Halper, 490 U.S. at 447, 104 L. Ed. 2d at 501.
The United States Supreme Court, as well as the majority in the instant case, held that neither a high rate of taxation nor an obvious deterrent purpose automatically mark a tax as a form of punishment. However, both factors, while not dispositive, are “consistent with a punitive character.” Kurth Ranch, 511 U.S. at -, 128 L. Ed. 2d at 779. The Supreme Court found that those factors, coupled with other “unusual factors,” clearly indicated the Montana tax was a second form of punishment, violative of the Double Jeopardy Clause.
The North Carolina Controlled Substance Tax contains many of the same elements as the Montana tax found to violate Double Jeopardy in Kurth Ranch. First, under the Montana statute some of the revenue generated by the tax is devoted to investigation, arrest and prosecution of individuals involved in distribution of drugs. Similarly, in North Carolina, seventy-five percent of the revenue raised from the tax is to be channeled to state and local law enforcement agencies responsible for investigating crimes involving controlled substances. N.C. Gen. Stat. § 105-113.113 (1992). The Montana statute requires law enforcement officers to notify the appropriate taxing authorities when drugs are seized and the North Carolina statutes do not. While the North Carolina statute does not contain the same explicit provision, it obviously encourages the same type of notification since the involved law enforcement agency receives the “lion’s share” of any tax collected.
Second, the North Carolina assessment is clearly penal in nature. The statute fails to meet the traditional revenue-raising purpose of a *187tax. Rather, the preamble provides that the purpose of the tax “is to levy an excise tax on persons who possess controlled substances and counterfeit controlled substances in violation of North Carolina law and to provide that a person who possesses such substances in violation of this Article is guilty of a felony.” N.C. Gen. Stat. § 105-113.105 (1992). Obviously, the intent of the legislature was to impose an additional penalty upon persons who violate the North Carolina criminal drug possession laws. (Added evidence of the legislature’s intent is a 1995 amendment providing an exemption to the tax to those persons in lawful possession of a controlled substance. N.C. Gen. Stat. § 105-113.107A (1995).)
Furthermore, like the Montana tax, the North Carolina tax on marijuana is extremely high at almost $100.00 per ounce. N.C. Gen. Stat. § 105-113.107 (1992). The tax is payable within 48 hours after a dealer acquires possession of a non-tax-paid controlled substance. If not paid within that time period, the possessor is subjected to a one hundred percent penalty fee and is guilty of a Class I felony. N.C. Gen. Stat. §§ 105-113.109 and -113.110 (1992). (Pursuant to a 1995 amendment, a possessor is now subjected to interest and a penalty of fifty percent of the tax. N.C. Gen. Stat. § 105-113.110A (1995).) Finally, the record reflects that the State has offered no evidence that the amount of the tax correlates in any way with the societal or remedial costs suffered by the State as a result of the taxed activities. These factors considered together are “consistent with a punitive character.” Id. at -, 128 L. Ed. 2d at 779. .
Third, like the Montana tax, the North Carolina tax is conditioned on commission of a crime. The North Carolina tax is levied against a dealer who possesses more than 42.5 grams of marijuana, seven or more grams of any other controlled substance that is sold by weight, or 10 or more dosage units of any other controlled substance that is not sold by weight. N.C. Gen. Stat. § 105-113.106 (1992). Therefore, the only people subject to the tax are those who, by definition, engage or have engaged in criminal conduct. See N.C. Gen. Stat. § 90-95 (1993).
Fourth, like the Montana tax, the North Carolina tax allows assessment of the tax after confiscation or seizure of the controlled substances upon which the assessment is made. Unlike the Montana tax, the North Carolina assessment may also occur prior to or without an arrest, as it is due 48 hours after the dealer possesses the controlled substance. The fact that a person may be assessed a tax on a *188substance that he neither owns or possesses when the tax is imposed is further evidence of the punitive nature of the tax. The State argues that, since the Montana tax was a “property” tax, while the North Carolina tax is labeled an “excise” tax, this somehow makes a difference in this analysis. However, the State offers no rationale as to why that would affect the tax’s punitive character and I can perceive of none. The North Carolina tax and the Montana tax are both assessed upon persons who are in possession of a controlled substance covered by the tax statute.
Also, while the-Montana tax expressly provided that the tax was to be collected only after state or federal fines or forfeitures had been satisfied, Kurth Ranch, 511 U.S. at -, 128 L. Ed. 2d at 773, the North Carolina tax has no such comparable provision. The North Carolina tax presumably may be assessed and collected before any existent state or federal fines or forfeitures. In my opinion, this is yet another indication of the punitive nature of the North Carolina Controlled Substance tax.
Fifth, as the Supreme Court recognized, taxes upon illegal activities differ from mixed-motive taxes which a state may impose both to deter a disfavored activity and to raise money, such as cigarette and liquor taxes. By imposing such taxes, the State seeks to discourage certain activities. However, because the products provide benefits such as additional employment, consumer satisfaction and increased tax revenues, the government allows the manufacture, sale and use of those items so long as manufacturers, sellers and consumers pay high taxes that reduce consumption. These justifications disappear when a tax is imposed upon an activity which is completely prohibited by the same sovereign which taxes the activity. “[T]he legitimate revenue-raising purpose that might support such a tax could be equally well served by increasing the fine imposed upon conviction.” Kurth Ranch, 511 U.S. at -, 128 L. Ed. 2d at 780.
Like the Montana tax, the North Carolina Controlled Substance tax is unusual in that it contains punitive as well as tax characteristics. In my view, the North Carolina tax, taken as a whole, is significantly similar to the Montana tax which was found to be violative of Double Jeopardy in Kurth Ranch. Like that tax, the North Carolina tax assessed against Mr. Ballenger is a “concoction of anomalies, too far-removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis.” Id. at — , 128 L. Ed. 2d at 781. For these reasons I would affirm the ruling of the able trial judge.