2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 3 - Dangerous Drugs
§ 16-13-72. Sale, Distribution, or Possession of Dangerous Drugs

Except as provided for in this article, it shall be unlawful for any person, firm, corporation, or association to sell, give away, barter, exchange, distribute, or possess in this state any dangerous drug, except under the following conditions:

1. A drug manufacturer, wholesaler, distributor, or supplier holding a license or registration issued in accordance with the Federal Food, Drug, and Cosmetic Act and authorizing the holder to possess dangerous drugs may possess dangerous drugs within this state but may not distribute, sell, exchange, give away, or by any other means supply dangerous drugs without a permit issued by the State Board of Pharmacy. Any drug manufacturer, wholesaler, distributor, or supplier holding a permit issued by the State Board of Pharmacy may sell, give away, exchange, or distribute dangerous drugs within this state, but only to a pharmacy, pharmacist, a practitioner of the healing arts, and educational institutions licensed by the state, or to a drug wholesaler, distributor, or supplier, and only if such distribution is made in the normal course of employment;
2. A pharmacy may possess dangerous drugs, but the same shall not be sold, given away, bartered, exchanged, or distributed except by a licensed pharmacist in accordance with this article;
3. A pharmacist may possess dangerous drugs but may sell, give away, barter, exchange, or distribute the same only when he compounds or dispenses the same upon the prescription of a practitioner of the healing arts. No such prescription shall be refilled except upon the authorization of the practitioner who prescribed it;
4. A practitioner of the healing arts may possess dangerous drugs and may sell, give away, barter, exchange, or distribute the same in accordance with Code Section 16-13-74;

   (4.1) A physician in conformity with Code Section 43-34-23 may delegate to a nurse or a physician assistant the authority to possess vaccines and such other drugs as specified by the physician for adverse reactions to those vaccines, and a nurse or physician assistant may possess such drugs pursuant to that delegation; provided, however, that nothing in this paragraph shall be construed to restrict any authority of nurses or physician assistants existing under other provisions of law;

   (4.2) A registered professional nurse licensed under Article 1 of Chapter 26 of Title 43 who is employed or engaged by a licensed home health agency may possess sterile saline, sterile water, and diluted heparin for use as intravenous maintenance for use in a home health setting, and such nurse may administer such items to patients of the home health agency upon the order of a licensed physician. The State Board of Pharmacy shall be authorized to adopt regulations governing the storage, quantity, use, and administration of such items; provided, however, nothing in this paragraph or in such regulations shall be construed to restrict any authority of nurses existing under other provisions of law;

   (4.3) Possession, planting, cultivation, growing, or harvesting of Salvia divinorum or Salvia divinorum A strictly for aesthetic, landscaping, or decorative purposes;

5. A manufacturer's sales representative may distribute a dangerous drug as a complimentary sample only upon the written request of a practitioner. The request must be made for each distribution and shall contain the names and addresses of the supplier and the requestor and the name and quantity of the specific dangerous drug requested. The written request shall be preserved by the manufacturer for a period of two years; and
6. Such person, firm, corporation, or association shall keep a complete and accurate record of all dangerous drugs received, purchased, manufactured, sold, dispensed, or otherwise disposed of and shall maintain such records for at least two years or in conformance with any other state or federal law or rule issued by the State Board of Pharmacy.

(Code 1933, § 79A-703, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1972, p. 948, § 2; Ga. L. 1975, p. 690, § 1; Ga. L. 1982, p. 3, § 16; Ga. L. 1996, p. 356, § 6; Ga. L. 1998, p. 219, § 1; Ga. L. 1999, p. 643, § 5.2; Ga. L. 2003, p. 140, § 16; Ga. L. 2009, p. 859, § 5/HB 509; Ga. L. 2010, p. 905, § 2/HB 1021.)

- Pharmacists and pharmacies generally, § 26-4-1 et seq.

Reward for furnishing information leading to arrest and conviction of person charged with selling dangerous drugs in violation of section, § 45-12-37.

- Pursuant to Code Section 28-9-5, in 1992, "Federal Food, Drug, and Cosmetic Act" was substituted for "Federal Food, Drug and Cosmetic Act" in paragraph (1).

Pursuant to Code Section 28-9-5, in 2011, "Georgia" was deleted preceding "State Board of Pharmacy" at the end of paragraph (6).

JUDICIAL DECISIONS

Pharmacy license as defense to drug possession charge.

- Whether an individual has a license or is otherwise lawfully permitted to have in the individual's possession narcotic drugs under O.C.G.A. Ch. 13, T. 16 is 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).

- Neither offense of selling or possessing prohibited drugs is a necessary element in, or constitutes an essential part of, the other offense. They are in law separate and distinct offenses, and may be punished as separate crimes. Gee v. State, 225 Ga. 669, 171 S.E.2d 291 (1969).

- Offense of sale of methaqualone as proscribed and made a misdemeanor by O.C.G.A. Art. 3, Ch. 13, T. 16 is not an included offense of sale of methaqualone as proscribed and made a felony by O.C.G.A. Art. 2, Ch. 13, T. 16 (Controlled Substances Act), since purposes of the two Acts and legislative intent in enacting them are different. Different facts and elements must be proved when proving offense under either Act even though sale of methaqualone is gravamen of each offense. Head v. State, 160 Ga. App. 4, 285 S.E.2d 735 (1981).

Trial court did not err in convicting the defendant of possession of dangerous drugs in violation of the Dangerous Drug Act, O.C.G.A. § 16-13-70 et seq., because the variance between the allegations in the indictment and the proof at trial was not fatal since even though the indictment accused the defendant of possessing amyl nitrate, which was not included in the list of dangerous drugs, the bottle the defendant possessed contained alkyl nitrite, which was classified as a dangerous drug under the Act, O.C.G.A. § 16-13-71(b)(21.1); the defense was not compromised at trial, and the defendant was protected from a second prosecution for the same offense because the name of the indicted chemical and the proven chemical were similar, the indictment notified the defendant of the date of the offense, the type of offense, and the basis for the offense, and the defendant was convicted of the same offense listed in the indictment. Serna v. State, 308 Ga. App. 518, 707 S.E.2d 904 (2011).

- Evidence was insufficient to support a conviction for possession of diphenhydramine under O.C.G.A. § 16-13-72 where the forensic chemist did not testify as to the amount contained in the diphenhydramine pills, nor did the chemist testify that the pills failed to comply with Food and Drug Administration labeling requirements. Jackson v. State, 251 Ga. App. 781, 555 S.E.2d 136 (2001).

Cited in White v. State, 230 Ga. 327, 196 S.E.2d 849 (1973); Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 26, 40, 87.

- 28 C.J.S., Drugs and Narcotics, §§ 25, 65 et seq.

- Charge of illegal sale of narcotics or intoxicating liquor predicated upon defendant's issuance of prescription therefor otherwise than in the course of his professional practice, 133 A.L.R. 1140.

Construction and effect of "sale" or "sell" in Uniform Narcotic Drug Act, 93 A.L.R.2d 1008.

Admissibility, in prosecution for illegal sale of narcotics, of evidence of other sales, 93 A.L.R.2d 1097.

Free exercise of religion as defense to prosecution for narcotic or psychedelic drug offense, 35 A.L.R.3d 939.

Permitting unlawful use of narcotics in private home as criminal offense, 54 A.L.R.3d 1297.

Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Promotional efforts directed toward prescribing physician as affecting prescription drug manufacturer's liability for product-caused injury, 94 A.L.R.3d 1080.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.