2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-30.1. Unlawful Manufacture, Delivery, Distribution, Possession, or Sale of Noncontrolled Substances; Civil Forfeiture

1. 1. It is unlawful for any person knowingly to manufacture, deliver, distribute, dispense, possess with the intent to distribute, or sell a noncontrolled substance upon either:
      1. The express or implied representation that the substance is a narcotic or nonnarcotic controlled substance;
      2. The express or implied representation that the substance is of such nature or appearance that the recipient of said delivery will be able to distribute said substance as a controlled substance; or
      3. The express or implied representation that the substance has essentially the same pharmacological action or effect as a controlled substance.
   2. The definitions of the terms "deliver," "delivery," "distribute," "dispense," and "manufacture" provided in Code Section 16-13-21 shall not be applicable to this Code section; but such terms as used in this Code section shall have the meanings ascribed to them in the ordinary course of business.
2. An implied representation may be shown by proof of any two of the following:
   1. The manufacture, delivery, distribution, dispensing, or sale included an exchange or a demand for money or other valuable property as consideration for delivery of the substance and the amount of such consideration was substantially in excess of the reasonable value of the noncontrolled substance;
   2. The physical appearance of the finished product containing the substance is substantially identical to a specific controlled substance;
   3. The finished product bears an imprint, identifying mark, number, or device which is substantially identical to the trademark, identifying mark, imprint, number, or device of a manufacturer licensed by the Food and Drug Administration of the United States Department of Health and Human Services.
3. In any prosecution for unlawful manufacture, delivery, distribution, possession with intent to distribute, dispensing, or sale of a noncontrolled substance, it is no defense that the accused believed the noncontrolled substance to be actually a controlled substance.
4. The provisions of this Code section shall not prohibit a duly licensed business establishment, acting in the usual course of business, from selling or for a practitioner, acting in the usual course of his professional practice, from dispensing a drug preparation manufactured by a manufacturer licensed by the Food and Drug Administration of the United States Department of Health and Human Services for over-the-counter sale which does not bear a label stating "Federal law prohibits dispensing without a prescription" or similar language meaning that the drug preparation requires a prescription.
5. The unlawful manufacture, delivery, distribution, dispensing, possession with the intention to distribute, or sale of a noncontrolled substance in violation of this Code section is a felony and, upon conviction thereof, such person shall be punished by imprisonment for not less than one year nor more than ten years or by a fine not to exceed $25,000.00, or both.
6. 1. As used in this subsection, the terms "proceeds" and "property" shall have the same meanings as set forth in Code Section 9-16-2.
   2. Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this Code section, and any proceeds, and any noncontrolled substance which is manufactured, distributed, dispensed, possessed with the intent to distribute, or sold in violation of this Code section are declared to be contraband and no person shall have a property right in them.
   3. Any property or noncontrolled substance subject to forfeiture pursuant to paragraph (2) of this subsection shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.

(Code 1981, §16-13-30.1, enacted by Ga. L. 1982, p. 2370, § 3; Ga. L. 1991, p. 886, § 2; Ga. L. 2015, p. 693, § 2-16/HB 233.)

- Ga. L. 1991, p. 886, § 4, not codified by the General Assembly, provides: "(a) The repeal, or repeal and reenactment, of the provisions of Code Section 16-13-49 by this Act shall not abate any cause of action which arose at any previous time under the provisions of said Code section prior to the effective date of this Act. Furthermore, no action for forfeiture shall be abated as a result of the provisions of this Act, and any and every such action or cause of action shall continue, subject only to the applicable statute of limitations.

"(b) No property shall be subject to forfeiture pursuant to this Act where the act or omission which makes such property subject to forfeiture occurred prior to the effective date of this Act unless such property was subject to forfeiture under the laws of this state at the time such act or omission occurred."

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 survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015).

JUDICIAL DECISIONS

Penalty provision held constitutional.

- O.C.G.A. § 16-13-30.1, which subjects a defendant to a greater penalty for the sale of a non-controlled substance than for the sale of some controlled substances, does not violate due process. Thompson v. State, 254 Ga. 393, 330 S.E.2d 348 (1985).

- Defendant was erroneously convicted of felony selling a non-controlled substance under O.C.G.A. § 16-13-30.1(a)(1)(A) where the subject conduct also violated O.C.G.A. § 16-13-30.2, which makes it a misdemeanor to possess or distribute an "imitation controlled substance"; the state improperly prosecuted defendant for violating the statute with the greater penalty rather than the one with the lesser penalty. Brown v. State, 276 Ga. 606, 581 S.E.2d 35 (2003).

§ 16-13-30.2 is not a lesser included offense. - O.C.G.A. § 16-13-30.2 cannot be considered a lesser included crime of O.C.G.A. § 16-13-30.1 under the required evidence test because the plain language of § 16-13-30.2 requires proof of a fact not required for a conviction under § 16-13-30.1. State v. Burgess, 263 Ga. 143, 429 S.E.2d 252 (1993).

- Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30). Smith v. State, 202 Ga. App. 664, 415 S.E.2d 481 (1992).

- Jury properly concluded, based on their common sense and the ordinary test of human experiences, that $20 is "substantially in excess of" the "reasonable value" of an ordinary pebble such as one might pick up off the ground and that the appearance of the noncontrolled substance was so "substantially identical" to that of rock cocaine that an undercover agent whose assignment was to purchase actual cocaine bought it. Billups v. State, 206 Ga. App. 91, 424 S.E.2d 355 (1992).

- When a defendant appealed a 72-month sentence for violating 18 U.S.C. § 922(g)(1), which was enhanced pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2), the defendant's argument was foreclosed that the defendant's non-controlled substance conviction under O.C.G.A. § 16-13-30.1(a)(1) was not a controlled substance offense under U.S. Sentencing Guidelines Manual § 4B1.2(b). United States v. James, F.3d (11th Cir. Oct. 17, 2017)(Unpublished).

Rule of lenity did not apply to a defendant's conviction of felony possession with intent to distribute a noncontrolled substance, O.C.G.A. § 16-13-30.1, because the evidence did not show that the substance at issue was an "imitation controlled substance" for purposes of misdemeanor unlawful manufacture, distribution, or possession with intent to distribute of imitation controlled substances, O.C.G.A. § 16-13-30.2; although the noncontrolled substance at issue was in common packaging for narcotics, the evidence did not show that it appeared as a "dosage unit" based on color, shape, size, or markings or was specifically designed or manufactured to resemble a controlled substance. Therefore, the evidence failed to establish that the defendant's conduct fell within § 16-13-30.2(a). Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252 (2009).

- Trial court did not err by refusing to apply the rule of lenity with regard to a defendant's conviction for selling a counterfeit substance because the evidence revealed that the substance would not fall under either definition of "imitation controlled substance" set forth in O.C.G.A. § 16-13-21(12.1)(A) as the parties stipulated only that the substance recovered was not a controlled substance and there was no evidence presented that it was specifically designed or manufactured to resemble the physical appearance of a controlled substance. As a result, the rule of lenity did not apply, and the trial court properly sentenced the defendant for a felony. Chandler v. State, 294 Ga. App. 27, 668 S.E.2d 510 (2008).

- Evidence was sufficient to support a defendant's convictions under O.C.G.A. § 16-13-30.1 for possessing with intent to distribute a substance represented to be cocaine and possessing with intent to distribute a substance represented to be methamphetamine because, although the defendant argued that the defendant was merely a backseat passenger in a vehicle involved in the underlying transaction who was not shown to be in either actual or constructive possession of the substance at issue, evidence established that the defendant negotiated to sell to an agent a substance expressly represented to be cocaine and a substance expressly represented to be methamphetamine; this material was in the car with the defendant, who handed the material to a third person who was to deliver the substance to the agent, and, the claim that the defendant acted innocently was refuted by the third person's testimony that the third person and the defendant knew what was going on and that the third person called the defendant to ask about drugs in connection with this transaction. Any rational trier of fact could have concluded beyond a reasonable doubt that the defendant was a party to the crimes. Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252 (2009).

RESEARCH REFERENCES

ALR.

- Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.