2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-21. Definitions

As used in this article, the term:

(0.5) "Addiction" means a primary, chronic, neurobiologic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. It is characterized by behaviors that include the following: impaired control drug use, craving, compulsive use, and continued use despite harm. Physical dependence and tolerance are normal physiological consequences of extended opioid therapy for pain and are not the same as addiction.

1. "Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or by any other means, to the body of a patient or research subject by:
   1. A practitioner or, in his or her presence, by his or her authorized agent; or
   2. The patient or research subject at the direction and in the presence of the practitioner.

   (1.1) "Agency" means the Georgia Drugs and Narcotics Agency established pursuant to Code Section 26-4-29.

2. "Agent" of a manufacturer, distributor, or dispenser means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman.

   (2.1) "Board" means the State Board of Pharmacy or its designee, so long as such designee is another state entity.

3. "Bureau" means the Georgia Bureau of Investigation.
4. "Controlled substance" means a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308.
5. "Conveyance" means any object, including aircraft, vehicle, or vessel, but not including a person, which may be used to carry or transport a substance or object.
6. "Counterfeit substance" means:
   1. A controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the controlled substance;
   2. A controlled substance or noncontrolled substance, which is held out to be a controlled substance or marijuana, whether in a container or not which does not bear a label which accurately or truthfully identifies the substance contained therein; or
   3. Any substance, whether in a container or not, which bears a label falsely identifying the contents as a controlled substance.

   (6.1) "Dangerous drug" means any drug, other than a controlled substance, which cannot be dispensed except upon the issuance of a prescription drug order by a practitioner authorized under this chapter.

   (6.2) "DEA" means the United States Drug Enforcement Administration.

7. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
8. "Dependent," "dependency," "physical dependency," "psychological dependency," or "psychic dependency" means and includes the state of adaptation that is manifested by drug class specific signs and symptoms that can be produced by abrupt cessation, rapid dose reduction, decreasing blood level of the drug, and administration of an antagonist. Physical dependence, by itself, does not equate with addiction.
9. "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery, or the delivery of a controlled substance by a practitioner, acting in the normal course of his or her professional practice and in accordance with this article, or to a relative or representative of the person for whom the controlled substance is prescribed.
10. "Dispenser" means a person licensed under the laws of this state, or any other state or territory of the United States, to dispense or deliver a Schedule II, III, IV, or V controlled substance to the ultimate user in this state but shall not include:
    1. A pharmacy licensed as a hospital pharmacy by the Georgia State Board of Pharmacy pursuant to Code Section 26-4-110;
    2. An institutional pharmacy that serves only a health care facility, including, but not limited to, a nursing home, an intermediate care home, a personal care home, or a hospice program, which provides patient care and which pharmacy dispenses such substances to be administered and used by a patient on the premises of the facility;
    3. A practitioner or other authorized person who administers such a substance; or
    4. A pharmacy operated by, on behalf of, or under contract with the Department of Corrections for the sole and exclusive purpose of providing services in a secure environment to prisoners within a penal institution, penitentiary, prison, detention center, or other secure correctional institution. This shall include correctional institutions operated by private entities in this state which house inmates under the Department of Corrections.
11. "Distribute" means to deliver a controlled substance, other than by administering or dispensing it.
12. "Distributor" means a person who distributes.

    (12.05) "FDA" means the United States Food and Drug Administration.

    (12.1) "Imitation controlled substance" means:

    1. A product specifically designed or manufactured to resemble the physical appearance of a controlled substance such that a reasonable person of ordinary knowledge would not be able to distinguish the imitation from the controlled substance by outward appearances; or
    2. A product, not a controlled substance, which, by representations made and by dosage unit appearance, including color, shape, size, or markings, would lead a reasonable person to believe that, if ingested, the product would have a stimulant or depressant effect similar to or the same as that of one or more of the controlled substances included in Schedules I through V of Code Sections 16-13-25 through 16-13-29.
13. "Immediate precursor" means a substance which the State Board of Pharmacy has found to be and by rule identifies as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used, in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture.
14. "Isomers" means stereoisomers (optical isomers), geometrical isomers, and structural isomers (chain and positional isomers) but shall not include functional isomers.
15. "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation, compounding, packaging, or labeling of a controlled substance:
    1. By a practitioner as an incident to his or her administering or dispensing of a controlled substance in the course of his or her professional practice; or
    2. By a practitioner or by his or her authorized agent under his or her supervision for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.
16. "Marijuana" means all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25; shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3. Such term shall not include products approved by the federal Food and Drug Administration under Section 505 of the federal Food, Drug, and Cosmetic Act.
17. "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;
    2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical to any of the substances referred to in subparagraph (A) of this paragraph, but not including the isoquinoline alkaloids of opium;
    3. Opium poppy and poppy straw; or
    4. Coca leaves and any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, stereoisomers of cocaine, derivative, or preparation thereof which is chemically equivalent or identical to any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

    (17.1) "Noncontrolled substance" means any drug or other substance other than a controlled substance as defined by paragraph (4) of this Code section.

18. "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under Code Section 16-13-22, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.
19. "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds.

    (19.1) "Patient" means the person who is the intended consumer of a drug for whom a prescription is issued or for whom a drug is dispensed.

20. "Person" means an individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, or association, or any other legal entity.
21. "Poppy straw" means all parts, except the seeds, of the opium poppy after mowing.
22. "Potential for abuse" means and includes a substantial potential for a substance to be used by an individual to the extent of creating hazards to the health of the user or the safety of the public, or the substantial potential of a substance to cause an individual using that substance to become dependent upon that substance.
23. "Practitioner" means:
    1. A physician, dentist, pharmacist, podiatrist, scientific investigator, or other person licensed, registered, or otherwise authorized under the laws of this state to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state;
    2. A pharmacy, hospital, or other institution licensed, registered, or otherwise authorized by law to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state;
    3. An advanced practice registered nurse acting pursuant to the authority of Code Section 43-34-25. For purposes of this chapter and Code Section 43-34-25, an advanced practice registered nurse is authorized to register with the DEA and appropriate state authorities; or
    4. A physician assistant acting pursuant to the authority of subsection (e.1) of Code Section 43-34-103. For purposes of this chapter and subsection (e.1) of Code Section 43-34-103, a physician assistant is authorized to register with the DEA and appropriate state authorities.

    (23.1) "Prescriber" means a physician, dentist, scientific investigator, or other person licensed, registered, or otherwise authorized under the laws of this state, or any other state or territory of the United States, to prescribe a controlled substance in the course of professional practice or research in this state.

24. "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.
25. "Registered" or "register" means registration as required by this article.
26. "Registrant" means a person who is registered under this article.

    (26.1) "Schedule II, III, IV, or V controlled substance" means a controlled substance that is classified as a Schedule II, III, IV, or V controlled substance under Code Section 16-13-26, 16-13-27, 16-13-28, or 16-13-29, respectively, or under the federal Controlled Substances Act, 21 U.S.C. Section 812.

27. "State," when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof, or any area subject to the legal authority of the United States.

    (27.1) "Tolerance" means a physiologic state resulting from regular use of a drug in which an increased dosage is needed to produce a specific effect or a reduced effect is observed with a constant dose over time. Tolerance may or may not be evident during opioid treatment and does not equate with addiction.

28. "Ultimate user" means a person who lawfully possesses a controlled substance for his or her own use, for the use of a member of his or her household, or for administering to an animal owned by him or her or by a member of his or her household or an agent or representative of the person.

(Code 1933, § 79A-802, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1974, p. 221, § 1; Ga. L. 1978, p. 2237, § 1; Ga. L. 1979, p. 859, § 4; Ga. L. 1980, p. 1746, § 3; Ga. L. 1982, p. 3, § 16; Ga. L. 1982, p. 1264, §§ 1, 3; Ga. L. 1982, p. 2370, §§ 1, 2; Ga. L. 1982, p. 2403, §§ 10, 15; Ga. L. 1984, p. 22, § 16; Ga. L. 1985, p. 149, § 16; Ga. L. 1986, p. 10, § 16; Ga. L. 1986, p. 1555, §§ 1, 2; Ga. L. 1988, p. 1065, § 1; Ga. L. 1999, p. 643, § 5.1; Ga. L. 2003, p. 349, § 1; Ga. L. 2006, p. 125, § 2/SB 480; Ga. L. 2009, p. 859, § 4/HB 509; Ga. L. 2011, p. 659, § 1/SB 36; Ga. L. 2014, p. 353, § 1/SB 134; Ga. L. 2014, p. 866, § 16/SB 340; Ga. L. 2015, p. 5, § 16/HB 90; Ga. L. 2019, p. 1030, § 2/HB 213; Ga. L. 2021, p. 184, § 25/SB 195.)

The 2019 amendment, effective May 10, 2019, in paragraph (16), substituted a comma for the semicolon following "or resin" and "16-13-25;" for "16-13-25 and" in the middle, and added "; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3" at the end.

The 2021 amendment, effective July 1, 2021, added the second sentence in paragraph (16).

- Pursuant to Code Section 28-9-5, in 1986, substituted "stereoisomers" for "steroisomers" twice near the middle of subparagraph (17)(D).

- Ga. L. 2021, p. 184, § 28/SB 195, not codified by the General Assembly, provides that: "Nothing in this Act shall be deemed to change, amend, or alter any criteria for applications for a Class 1 or Class 2 production license submitted to the Georgia Access to Medical Cannabis Commission on or prior to January 27, 2021."

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 269 (2011). For article, "Crimes and Offenses: Controlled Substances," see 28 Ga. St. U.L. Rev. 269 (2011). For article on Crimes and Offenses: Crimes Against the Person, see 35 Ga. St. U.L. Rev. 19 (2018).

ANALYSIS

• General Consideration
• Marijuana

OPINIONS OF THE ATTORNEY GENERAL

State Board of Pharmacy regulates dispensing drugs in hospitals.

- Dispensing drugs in hospitals by machine or otherwise is a matter which the legislature has left to the State Board of Pharmacy to regulate through its rule-making power. 1969 Op. Att'y Gen. No. 69-85.

- Intern or resident accepted for specialty or residency training in a hospital approved by Composite State Board of Medical Examiners (now Georgia Composite Medical Board) may prescribe, administer, and dispense narcotic drugs to the extent required by duties of the intern's position or by the intern's program of training for a period of two years and for such additional period as the board by application may determine. 1971 Op. Att'y Gen. No. 71-157.

- This definition of dispenser appears to contemplate that only those persons who are licensed to practice pharmacy outside of an institutional setting, i.e., non-institutional pharmacists, qualify as dispensers for purposes of the Georgia Prescription Drug Monitoring Program. 2016 Op. Att'y Gen. No. 16-7.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 1 et seq., 18.

- 28 C.J.S., Drugs and Narcotics, §§ 6 et seq, 219.

- Uniform Controlled Substances Act (U.L.A.) § 101.

- Marijuana, psilocybin, peyote, or similar drugs of vegetable origin as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1164.

LSD, STP, MDA, or other chemically synthesized hallucinogenic or psychedelic substances as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1284.

Propriety of lesser-included-offense charge in state prosecution of narcotics defendant - Marijuana cases, 1 A.L.R.6th 549.

Propriety of lesser-included-offense charge in state prosecution of narcotics defendant - Cocaine cases, 2 A.L.R.6th 551.

Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or transaction in prosecution for possession or distribution of drugs, 109 A.L.R. Fed. 710.