2020 Georgia Code
Title 42 - Penal Institutions
Chapter 5 - Correctional Institutions of State and Counties
Article 1 - General Provisions
§ 42-5-18. Items Prohibited for Possession by Inmates; Warden's Authorization; Penalty; Use of Unmanned Aircraft to Accomplish Violations

1. As used in this Code section, the term:
   1. "Inmate" means a prisoner, detainee, criminal suspect, immigration detainee, or other person held, incarcerated, or detained in a place of incarceration, whether or not such person is inside or outside of such place of incarceration.
   2. "Place of incarceration" means any prison, probation detention center, jail, or institution, including any state, federal, local, or privately operated facility, used for the purpose of incarcerating criminals or detainees.
   3. "Telecommunications device" means a device, an apparatus associated with a device, or a component of a device that enables, or may be used to enable, communication with a person outside a place of incarceration, including a telephone, cellular telephone, personal digital assistant, transmitting radio, or computer connected or capable of being connected to a computer network, by wireless or other technology, or otherwise capable of communicating with a person or device outside of a place of incarceration.
   4. "Warden or superintendent" means the commissioner or any warden, superintendent, sheriff, chief jailor, or other person who is responsible for the overall management and operation of a place of incarceration.
2. It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate a gun, pistol, or any other weapon; any intoxicating liquor; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; any telecommunications device; or any other article or item without the authorization of the warden or superintendent or his or her designee.
3. It shall be unlawful for an inmate to possess a gun, pistol, or any other weapon; any intoxicating liquor; tobacco or any product containing tobacco; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; a telecommunications device; or any other item without the authorization of the warden or superintendent or his or her designee.
4. 1. An inmate who commits or attempts to commit a violation of subsection (c) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if an inmate violates this Code section while being held pursuant to an arrest or conviction for a misdemeanor offense, the possession of a telecommunications device in violation of this Code section shall be treated as a misdemeanor.
   2. A person who commits or attempts to commit a violation of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be sentenced to a mandatory minimum term of imprisonment of two years but not more than ten years, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.
   3. A person who commits or attempts to commit a violation of subsection (b.1) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years.
5. 1. It shall be unlawful for an inmate to possess a stored value card, the account number of a stored value card, or the personal identification number of a stored value card.
   2. It shall be unlawful for any person to obtain for, to procure for, or to give an inmate a stored value card, the account number of a stored value card, or the personal identification number of a stored value card.
   3. A person who commits a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced to a term of imprisonment of not less than one nor more than ten years, unless the judge imposes a misdemeanor sentence pursuant to Code Section 17-10-5.
6. 1. It shall be unlawful for any person to intentionally use an unmanned aircraft system to violate the provisions of subsection (b) or (b.1) of this Code section.
   2. 1. It shall be unlawful for any person to intentionally photograph or otherwise record images of a place of incarceration through the use of an unmanned aircraft system for purposes of committing a criminal offense.
      2. Any person may secure prior authorization from the warden or the superintendent, or his or her designated representative, of such place of incarceration for photographing or recording as evidence of a noncriminal intent; provided, however, that failure to secure such prior authorization shall not evidence a criminal intent.
   3. Any person who commits or attempts to commit a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced as follows:
      1. Any person convicted of a violation of paragraph (1) of this subsection shall be imprisoned for not less than one nor more than ten years; and
      2. Any person convicted of paragraph (2) of this subsection shall be imprisoned for not less than one nor more than five years.
   4. For purposes of this Code section, the term "unmanned aircraft system" shall have the same meaning as provided for in Code Section 6-1-4.

(b.1)It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate tobacco or any product containing tobacco without the authorization of the warden or superintendent or his or her designee.

(Ga. L. 1976, p. 1506, § 2; Ga. L. 1984, p. 593, § 1; Ga. L. 2008, p. 533, § 1/SB 366; Ga. L. 2016, p. 811, § 8/HB 874; Ga. L. 2017, p. 673, § 3-3/SB 149; Ga. L. 2018, p. 1112, § 42/SB 365; Ga. L. 2019, p. 293, § 1/SB 6; Ga. L. 2020, p. 493, § 42/SB 429.)

The 2016 amendment, effective May 3, 2016, designated the existing provisions of subsection (d) as paragraph (d)(1); in paragraph (d)(1), substituted "An inmate" for "A person" in the beginning, inserted "subsection (c) of", and substituted "an inmate" for "a person" in the middle; and added paragraph (d)(2).

The 2017 amendment, effective July 1, 2017, added ", whether or not such person is inside or outside of such place of incarceration" at the end of paragraph (a)(1); added paragraph (b.1); inserted "tobacco or any product containing tobacco;" near the beginning of subsection (c); added paragraph (d)(3); and added subsection (e).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "means the commissioner" for "shall mean the commissioner" in paragraph (a)(4); and substituted "provided, however, that if an inmate" for "provided, however, if an inmate" in the proviso of paragraph (d)(1).

The 2019 amendment, effective July 1, 2019, added subsection (f).

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, revised capitalization in paragraph (f)(4).

- Similar provisions regarding furnishing of alcoholic beverages to inmates of jails, penal institutions, correctional facilities, or other lawful places of confinement, § 3-3-25.

JUDICIAL DECISIONS

"Weapon" defined.

- Jury's finding that a "water bug" (a device used to bring a liquid to a boil), which defendant threw at correctional officers, was a "weapon," within the meaning of subsection (b) of O.C.G.A. § 42-5-18, was not unreasonable. Culbertson v. State, 193 Ga. App. 9, 386 S.E.2d 894 (1989).

Evidence sufficient for conviction of possession of drugs by an inmate. Webb v. State, 249 Ga. App. 214, 547 S.E.2d 767 (2001).

Defendant's conviction for the unauthorized possession of drugs by an inmate, contrary to O.C.G.A. § 42-5-18(b), was based on sufficient evidence as the evidence showed that during a confiscation and inventory of defendant's personal possessions, before moving the defendant to a new cell, a shampoo bottle containing a substance determined to be marijuana was discovered. Collinsworth v. State, 276 Ga. App. 58, 622 S.E.2d 419 (2005).

There was sufficient evidence to support the defendant's conviction for furnishing prohibited items to inmates, including the defendant's admission that the defendant agreed to bring items to the prison and planned to throw the items over the fence, the defendant was seen outside the prison fence long after visiting hours had ended, lying in the grass attempting to conceal the bundles, and the defendant ran when approached, leading to the conclusion that the warden had not authorized the defendant's actions. Terrell v. State, 353 Ga. App. 780, 839 S.E.2d 274 (2020).

- Defendant's conviction for possession of drugs by an inmate in violation of O.C.G.A. § 42-5-18(c) was reversed because the state failed to present any evidence to support even an inference that the defendant had any prior knowledge of drugs that were found in a bag or any idea what was in the bag; the state failed to demonstrate that the defendant had the bag in the defendant's possession for any reason other than the performance of the defendant's assigned duties of cleaning the visitation lobby in the prison and, thus, failed to exclude the reasonable hypothesis that the defendant was merely performing the job when the defendant removed the bag from one trash can and placed the bag in the other. Strozier v. State, 313 Ga. App. 804, 723 S.E.2d 39 (2012).

- Trial court did not err in sentencing the defendant on all three counts because O.C.G.A. § 42-5-18 unequivocally listed a variety of specific items, separated by semicolons, and defendant was sentenced related to crimes involving distinct, separate items, identified in different statutory clauses. Terrell v. State, 353 Ga. App. 780, 839 S.E.2d 274 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Applicability.

- This section is applicable only when the items referred to are obtained or procured for or given to a convict. It is not applicable if the items referred to are obtained or procured for or given to a prisoner being held in a county jail who has not yet been convicted of any crime. 1980 Op. Att'y Gen. No. U80-12.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 73.

- Nature and elements of offense of conveying contraband to state prisoner, 64 A.L.R.4th 902.

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 A.L.R.5th 767.