2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances

- Disciplinary action for student of public educational institution convicted of controlled substance offense, § 20-1-23.

Disciplinary action for student of nonpublic educational institution convicted of controlled substance abuse, § 20-1-24.

- For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For note on 2000 amendments of O.C.G.A. §§ 16-13-26 to16-13-28, see 17 Ga. St. U.L. Rev. 85 (2000). For comment on Tant v. State, 123 Ga. App. 760, 182 S.E.2d 502 (1971), advocating additional reform of Georgia's system of appellate review of criminal cases, see 9 Ga. St. B.J. 490 (1973). For comment, "The Opioid Epidemic: Returning to the Basics," see 70 Mercer L. Rev. 525 (2019).

JUDICIAL DECISIONS

Constitutionality.

- Georgia Controlled Substances Act (see now O.C.G.A. § 16-13-20 et seq.) is not unconstitutional as violating Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para. III), which prohibits inclusion of more than one subject matter in any Act of the General Assembly. Lord v. State, 235 Ga. 342, 219 S.E.2d 425 (1975).

Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., is not an unconstitutional delegation of legislative authority on ground that the General Assembly has failed to maintain control over determination of whether a substance should fall within its purview, since O.C.G.A. § 16-13-22 provides that State Board of Pharmacy shall consider nine factors and shall make findings after considering those nine factors. Consideration of the statutory factors is mandatory. Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981).

- Possession of controlled substance is separate and distinct from conduct required to establish offense of driving under influence of intoxicants, although the offenses may arise out of the same conduct, i.e., driving. Rogers v. State, 166 Ga. App. 299, 304 S.E.2d 108 (1983).

When exclusive possession of an automobile is shown, there is a rebuttable presumption that the owner has possession of the property contained therein. This presumption does not apply if it can be shown that the defendant had not been in possession or control for a period before discovery of contraband or where others had equal access to the automobile. Ledesma v. State, 251 Ga. 487, 306 S.E.2d 629 (1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213 (1984).

- Mere presence of contraband on premises occupied by accused is insufficient to sustain conviction where there is evidence of access by others. Shockley v. State, 166 Ga. App. 182, 303 S.E.2d 519 (1983).

- See White v. State, 168 Ga. App. 609, 309 S.E.2d 848 (1983).

- Whether an individual has a license or is otherwise lawfully permitted to have in the individual's possession narcotic drugs is a matter of defense and not an element of the offense. Woods v. State, 233 Ga. 347, 211 S.E.2d 300 (1974), appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2623, 45 L. Ed. 2d 667 (1975).

A sale of drugs is complete when the seller delivers the drugs to the feigned buyer. Robinson v. State, 164 Ga. App. 652, 297 S.E.2d 751 (1982).

No entrapment occurs when idea of selling illegal drugs is not planted in the defendant's mind by an undercover officer, but the defendant is predisposed to make such a sale and the officer merely provides the opportunity. Sibley v. State, 166 Ga. App. 142, 303 S.E.2d 465 (1983).

Use of a "narcotics" dog, especially trained to detect marijuana and narcotics, is an authorized investigative technique. Lockhart v. State, 166 Ga. App. 555, 305 S.E.2d 22 (1983).

- Admission into evidence of substances contained within boxes and envelopes found on the defendant's person during a search incident to the defendant's arrest for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., is not error. Dasher v. State, 166 Ga. App. 237, 304 S.E.2d 87 (1983).

Written confession is not involuntarily given when the confession is induced by the arresting officer's promise of "cooperation," which offer is directed toward obtaining information regarding the source of the illegal drugs or regarding other individuals who might be involved in illegal drugs and which does not refer to the defendant's giving a statement or confession to the police. Worley v. State, 166 Ga. App. 794, 305 S.E.2d 485 (1983).

- Trial judge is charged with the final responsibility of evaluating the links of the chain of custody to ascertain if the evidence of identification of contraband has become so attenuated as to become irrelevant or incompetent as an aid in determining the issue of guilt or innocence. Thomas v. State, 166 Ga. App. 559, 305 S.E.2d 151 (1983).

Trial court may, as matter of discretion, refuse to permit examination by defendant of substance used as evidence of violation of the Georgia Controlled Substances Act (see now O.C.G.A. § 16-13-20 et seq.). Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. denied, 431 U.S. 970, 98 S. Ct. 248, 53 L. Ed. 2d 1067 (1977).

- Defendant charged with possession or sale of a prohibited substance has a general right to have expert of defendant's choosing analyze it independently. Where defendant's conviction or acquittal is dependent upon identification of substance as contraband, due process of law requires that analysis of substance not be left completely within province of state. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. denied, 431 U.S. 970, 98 S. Ct. 248, 53 L. Ed. 2d 1067 (1977).

Motion for independent examination of substance to be used as evidence must be timely made. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. denied, 431 U.S. 970, 98 S. Ct. 248, 53 L. Ed. 2d 1067 (1977).

- When the defendant's expert is to examine substance to be used as evidence of violation of the Georgia Controlled Substances Act (see now O.C.G.A. § 16-13-20 et seq.), appropriate safeguards to ensure evidence is properly preserved would generally require expert to conduct examination in state laboratory. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. denied, 431 U.S. 970, 98 S. Ct. 248, 53 L. Ed. 2d 1067 (1977).

- While the trial court used defendant's prior conviction to fix the length of defendant's sentence for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., defendant's failure to object to such evidence waived the trial court's error; however, as defendant's attorney failed to object to the trial court's use of defendant's prior conviction, defendant received ineffective assistance and was entitled to a new trial. Turner v. State, 259 Ga. App. 902, 578 S.E.2d 570 (2003).

- Ultimate weight and believability of the evidence to show the true nature of the allegedly illegal substance and the identity of the substance's seller should be left to the jury. Thomas v. State, 166 Ga. App. 559, 305 S.E.2d 151 (1983).

- See Choice v. State, 168 Ga. App. 28, 308 S.E.2d 1 (1983); Stewart v. State, 168 Ga. App. 154, 308 S.E.2d 615 (1983); Grimes v. State, 168 Ga. App. 372, 308 S.E.2d 863 (1983); Herndon v. State, 187 Ga. App. 77, 369 S.E.2d 264 (1988); Holmes v. State, 187 Ga. App. 214, 369 S.E.2d 533 (1988); Anfield v. State, 188 Ga. App. 345, 373 S.E.2d 51 (1988); Jones v. State, 191 Ga. App. 332, 381 S.E.2d 575 (1989); Howard v. State, 191 Ga. App. 418, 382 S.E.2d 159 (1989), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

Evidence that marijuana was found in the bedroom closet of the defendant's home and not affirmatively showing that anyone but the defendant had actual access to the closet was sufficient for a conviction of possession of marijuana. Burrell v. State, 171 Ga. App. 648, 320 S.E.2d 810 (1984).

Evidence that the defendant lived for one year, along with defendant's spouse and small child, in the house searched, that the old refrigerator where marijuana was found was only 30 steps from the house, that the path between the house and the refrigerator was well worn and led directly from the house to the refrigerator, supported the jury's conclusion that the defendant "possessed the contraband drugs knowingly, exclusively or at least jointly." Norris v. State, 171 Ga. App. 676, 320 S.E.2d 886 (1984).

Defendant's admission of cocaine use, along with other evidence showing that cocaine was on the seat and floorboard on the passenger side of the automobile in which defendant was a passenger, was more than sufficient to authorize a rational trier of fact to find that defendant was guilty of possession of cocaine beyond a reasonable doubt. Hall v. State, 188 Ga. App. 322, 373 S.E.2d 32 (1988).

When a search of defendant's car produced, among other things, drugs, syringes, scales, and a slip of paper with amounts of money listed next to various names and initials, there was sufficient evidence from which the jury was authorized to find defendant guilty beyond a reasonable doubt of trafficking in methamphetamine. Yarbrough v. State, 264 Ga. App. 848, 592 S.E.2d 681 (2003).

Denial of an appeal bond is not an abuse of discretion when the appellant admits that appellant has been addicted to drugs and that appellant has supported that addiction by shoplifting, resulting in previous arrests for that offense. Corbitt v. State, 167 Ga. App. 576, 307 S.E.2d 133 (1983).

Cited in Lord v. State, 235 Ga. 342, 219 S.E.2d 425 (1975); Hall v. State, 151 Ga. App. 700, 261 S.E.2d 442 (1979); Arnold v. State, 155 Ga. App. 581, 271 S.E.2d 714 (1980); Parker v. State, 155 Ga. App. 617, 271 S.E.2d 871 (1980); Prickett v. State, 155 Ga. App. 668, 272 S.E.2d 534 (1980); Hollingsworth v. State, 155 Ga. App. 878, 273 S.E.2d 639 (1980); Jones v. State, 155 Ga. App. 926, 274 S.E.2d 1 (1980); Davidson v. State, 156 Ga. App. 457, 274 S.E.2d 807 (1980); Bennett v. State, 156 Ga. App. 617, 275 S.E.2d 701 (1980); Murray v. State, 157 Ga. App. 596, 278 S.E.2d 2 (1981); Mitchell v. State, 157 Ga. App. 683, 278 S.E.2d 192 (1981); Gaylor v. State, 247 Ga. 759, 279 S.E.2d 207 (1981); Bailey v. State, 158 Ga. App. 96, 279 S.E.2d 334 (1981); Vaughn v. State, 160 Ga. App. 283, 287 S.E.2d 277 (1981); Carl v. State, 160 Ga. App. 464, 287 S.E.2d 379 (1981); Campbell v. State, 160 Ga. App. 561, 287 S.E.2d 591 (1981); Strong v. Slaton, 510 F. Supp. 161 (N.D. Ga. 1981); Rauschenberg v. State, 161 Ga. App. 331, 291 S.E.2d 58 (1982); Ledford v. State, 162 Ga. App. 221, 291 S.E.2d 82 (1982); Kennedy v. State, 162 Ga. App. 269, 291 S.E.2d 117 (1982); Seabrooks v. State, 164 Ga. App. 747, 297 S.E.2d 745 (1982); Landers v. State, 164 Ga. App. 657, 297 S.E.2d 748 (1982); Brooker v. State, 164 Ga. App. 775, 298 S.E.2d 48 (1982); Hicks v. Georgia State Bd. of Pharmacy, 553 F. Supp. 314 (N.D. Ga. 1982); Bedford v. State, 165 Ga. App. 232, 299 S.E.2d 129 (1983); Kemp v. Spradlin, 250 Ga. 829, 301 S.E.2d 874 (1983); Law v. State, 165 Ga. App. 687, 302 S.E.2d 570 (1983); Croom v. State, 165 Ga. App. 676, 302 S.E.2d 598 (1983); Martin v. State, 165 Ga. App. 760, 302 S.E.2d 614 (1983); Gumina v. State, 166 Ga. App. 592, 305 S.E.2d 37 (1983); Gallimore v. State, 166 Ga. App. 601, 305 S.E.2d 164 (1983); Recoba v. State, 167 Ga. App. 447, 306 S.E.2d 713 (1983); Morgan v. State, 168 Ga. App. 310, 308 S.E.2d 583 (1983); Lush v. State, 168 Ga. App. 740, 310 S.E.2d 287 (1983); Hester v. State, 187 Ga. App. 46, 369 S.E.2d 278 (1988); Glover v. State, 188 Ga. App. 330, 373 S.E.2d 39 (1988); Allison v. State, 188 Ga. App. 460, 373 S.E.2d 273 (1988); West v. State, 194 Ga. App. 620, 391 S.E.2d 673 (1990).

OPINIONS OF THE ATTORNEY GENERAL

Applicability to state and local agencies.

- State and local agencies are subject to the requirements of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., but are not subject to the requirements of the Dangerous Drug Act, O.C.G.A. § 16-13-70 et seq., since there is no definition of "person" specifically applicable to the Dangerous Drug Act. 1986 Op. Att'y Gen. No. 86-28.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, § 10.

- 28 C.J.S., Drugs and Narcotics, § 210 et seq.

- Entrapment to commit offense with respect to narcotics law, 33 A.L.R.3d 883.

Liability for discharge of at-will employee for refusal to submit to drug testing, 79 A.L.R.4th 105.

Propriety of stop and search by law enforcement officers based solely on drug courier profile, 37 A.L.R.5th 1.

PART 1 SCHEDULES, OFFENSES, AND PENALTIES

Editor's notes.

- Ga. L. 2011, p. 659, § 2/SB 36, effective July 1, 2011, redesignated the former provisions of Article 2 of Chapter 13, Title 16 as Part 1, Article 2 of Chapter 13, Title 16.