2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-32.1. Transactions in Drug Related Objects; Evidence as to Whether Object Is Drug Related; Civil Forfeiture; Penalties

1. It shall be unlawful for any person or corporation to sell, rent, lease, give, exchange, otherwise distribute, or possess with intent to distribute any object or materials of any kind which such person or corporation intends to be used for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.
2. Unless stated within the body of the advertisement or notice that the object or materials that are advertised or about which information is disseminated are not available for distribution of any sort in this state, it shall be unlawful for any person or corporation to sell, rent, lease, give, exchange, distribute, or possess with intent to distribute any advertisement of any kind or notice of any kind which gives information, directly or indirectly, on where, how, from whom, or by what means any object or materials may be obtained or made, which object or materials such person or corporation intends to be used for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.
3. In determining whether any object or materials are intended for any of the purposes listed in subsections (a) and (b) of this Code section, a court or other authority shall consider all logically relevant factors. In a trial under this Code section, any evidence admissible on this question under the rules of evidence shall be admitted. Subject to the rules of evidence, when they are the object of an offer of proof in a court proceeding, the following factors are among those that should be considered by a court or other authority on this question:
   1. Statements by an owner or anyone in control of the object or materials;
   2. Instructions provided with the object or materials;
   3. Descriptive materials accompanying the object or materials;
   4. National and local advertising or promotional materials concerning the object or materials;
   5. The appearance of, and any writing or other representations appearing on, the object or materials;
   6. The manner in which the object or materials are displayed for sale or other distribution;
   7. Expert testimony concerning the object or materials; and
   8. Any written or pictorial materials which are present in the place where the object is located.
4. For a first offense, any person or corporation which violates any provision of this Code section shall be guilty of a misdemeanor. For a second offense, the defendant shall be guilty of a misdemeanor of a high and aggravated nature. For a third or subsequent offense, the defendant shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than five years and shall be fined not more than $5,000.00.
5. All objects and materials which are distributed or possessed in violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them and shall be forfeited according to the procedure set forth in Chapter 16 of Title 9. As used in this subsection, the term "proceeds" shall have the same meaning as set forth in Code Section 9-16-2.

(Code 1933, § 79A-811.2, enacted by Ga. L. 1981, p. 180, § 1; Ga. L. 1985, p. 149, § 16; Ga. L. 2015, p. 693, § 2-20/HB 233.)

- Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For note on the Model Drug Paraphernalia Act and the Head Shop Industry, see 16 Ga. L. Rev. 137 (1981).

ANALYSIS

• General Consideration
• Constitutionality

General Consideration

Section 16-13-32 not repealed by implication.

- Despite the almost identical caption and punishment provisions, the enactment of O.C.G.A. § 16-13-32.1 was intended to be in addition to, rather than a substitute for, the existing statute (O.C.G.A. § 16-13-32); thus, § 16-13-32.1 did not repeal § 16-13-32 by implication. State v. Gill, 173 Ga. App. 848, 328 S.E.2d 561 (1985).

State has power and authority to enact properly drawn drug paraphernalia law pursuant to the state's police power. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

- Person violates O.C.G.A. § 16-13-32.1 only if the person personally intends object to be used for purpose prohibited by section. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

Evidence was sufficient for a jury to find defendant guilty of ingesting methamphetamine as defendant leased a house in which a widespread methamphetamine manufacturing operation took place, which created a strong chemical smell immediately apparent upon entering the house, and defendant tested positive for methamphetamine in defendant's system, circumstantially linking the defendant to the manufacturing process and undermining the claim that the defendant was unaware of the activity. Kirby v. State, 275 Ga. App. 216, 620 S.E.2d 459 (2005).

O.C.G.A. § 16-13-32.1 is not a bill of attainder nor does the statute deny "head shops" equal protection of the law. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

- O.C.G.A. § 16-13-32.1 is not unconstitutional on theory that the statute may be enforced only against "head shops." The statute applies to anyone who sells or advertises for sale objects which are drug-related. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

O.C.G.A. § 16-13-32.1 does not violate U.S. Const., Art. I, Sec. VIII, Cl. III (Commerce Clause), as the statute serves a legitimate public interest, and the statute's impact on interstate commerce is minimal inasmuch as the statute affects only objects connected with unlawful intent. Burden of new law on interstate commerce is not excessive. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

Advertisement provision of O.C.G.A. § 16-13-32.1 is not unconstitutional under U.S. Const., amend. 1, as it does not prohibit speech which describes or glorifies the drug culture. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

Void for vagueness test is satisfied as to "sale" and "advertisement" provisions set forth in O.C.G.A. § 16-13-32.1. Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

Constitutionality of O.C.G.A. § 16-13-32.1(e), see Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981).

RESEARCH REFERENCES

C.J.S.

- 28 C.J.S., Drugs and Narcotics, § 263 et seq.

- Construction and application of state drug paraphernalia acts, 23 A.L.R.6th 307.