2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-32.4. Manufacturing, Distributing, Dispensing, or Possessing Controlled Substances In, On, or Near Public or Private Schools

1. It shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana in, on, or within 1,000 feet of any real property owned by or leased to any public or private elementary school, secondary school, or school board used for elementary or secondary education.
2. Any person who violates or conspires to violate subsection (a) of this Code section shall be guilty of a felony and upon conviction shall receive the following punishment:
   1. Upon a first conviction, imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both; or
   2. Upon a second or subsequent conviction, imprisonment for not less than five years nor more than 40 years or a fine of not more than $40,000.00, or both.It shall be mandatory for the court to impose a minimum sentence of five years which may not be suspended unless otherwise provided by law.

      A sentence imposed under this Code section shall be served consecutively to any other sentence imposed.

3. A conviction arising under this Code section shall not merge with a conviction arising under any other provision of this article.
4. It shall be no defense to a prosecution for a violation of this Code section that:
   1. School was or was not in session at the time of the offense;
   2. The real property was being used for other purposes besides school purposes at the time of the offense; or
   3. The offense took place on a school vehicle.
5. In a prosecution under this Code section, a map produced or reproduced by any municipal or county agency or department for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of the real property of a school board or a private or public elementary or secondary school that is used for school purposes, or a true copy of the map, shall, if certified as a true copy by the custodian of the record, be admissible and shall constitute prima-facie evidence of the location and boundaries of the area, if the governing body of the municipality or county has approved the map as an official record of the location and boundaries of the area.A map approved under this Code section may be revised from time to time by the governing body of the municipality or county.The original of every map approved or revised under this subsection or a true copy of such original map shall be filed withthe municipality or county and shall be maintained as an official record of the municipality or county.This subsection shall not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense.This subsection shall not preclude the use or admissibility of a map or diagram other than the one which has been approved by the municipality or county.
6. A county school board may adopt regulations requiring the posting of signs designating the areas within 1,000 feet of school boards and private orpublic elementary and secondary schools as "Drug-free School Zones."
7. It is an affirmative defense to prosecution for a violation of this Code section that the prohibited conduct took place entirely within a private residence, that no person 17 years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct was not carried on for purposes of financial gain. Nothing in this subsection shall be construed to establish an affirmative defense with respect to any offense under this chapter other than the offense provided for in subsection (a) of this Code section.

(Code 1981, §16-13-32.4, enacted by Ga. L. 1990, p. 1097, § 1.)

- Pursuant to Code Section 28-9-5, in 1990, "$20,000.00" was substituted for "$20,000" in paragraph (b)(1) and "$40,000.00" was substituted for "$40,000" in paragraph (b)(2).

- Ga. L. 1990, p. 1097, § 2, not codified by the General Assembly, provides that this Code section shall apply to criminal offenses committed on or after July 1, 1990.

JUDICIAL DECISIONS

No application to university campus.

- Because the crime for possession of marijuana and a firearm took place on a university campus, O.C.G.A. § 16-13-32.4 had no application. Carter v. State, 319 Ga. App. 609, 737 S.E.2d 714 (2013).

- When a police officer set up surveillance of an area located within 1,000 feet of an elementary school and 1,000 feet of a public housing project using a video camera, observed the defendant sell cocaine or marijuana in five transactions, and described the buyers to other police officers who apprehended the buyers and found the buyers in possession of the drugs which the defendant had sold the buyers, the videotape of the transactions and the testimony of the observing police officer along with the laboratory evidence regarding the drugs that were recovered from the various buyers was sufficient to sustain defendant's convictions under the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., on five counts of selling a controlled substance and additional counts of selling the drugs within 1,000 feet of a school and selling the drugs within 1,000 feet of a public housing project. Robinson v. State, 259 Ga. App. 595, 578 S.E.2d 235 (2003).

- Evidence held sufficient for possessing cocaine, possessing cocaine within 1,000 feet of a housing project, and attempted bribery, where police officers observed defendant engaging in what appeared to be a drug transaction, they thereafter found cocaine on the sidewalk where defendant had been standing and cocaine in defendant's pockets, and defendant told a police officer who was counting defendant's money to take it and defendant's watch, and that defendant would pay the officer more in a week if the officer would let defendant go. Hester v. State, 261 Ga. App. 614, 583 S.E.2d 274 (2003).

Evidence that when a buyer went to the defendant's residence, the defendant had cocaine, which defendant then sold to the buyer, was sufficient to prove the elements of possession with intent to distribute for purposes of finding violations of O.C.G.A. §§ 16-13-32.4(a) and16-13-32.5(a). Smith v. State, 278 Ga. App. 315, 628 S.E.2d 722 (2006).

Defendant's conviction of possession of drugs with intent to distribute within 1,000 feet of a school in violation of O.C.G.A. § 16-13-32.4(a) was supported by sufficient evidence in the form of the testimony of police who searched the defendant's home, of the evidence custodian, of the forensic chemist who tested the drugs, and of a house mate who witnessed the defendant selling drugs. Harkins v. State, 281 Ga. App. 512, 636 S.E.2d 698 (2006).

In the possession of drugs with intent to distribute within 1,000 feet of a school in violation of O.C.G.A. § 16-13-32.4(a) case, the defendant's argument, that the evidence supported a reasonable hypothesis of innocence because the evidence showed that the prohibited conduct took place entirely within a private residence, failed; the reasonable hypothesis rule was inapplicable since there was direct evidence of the defendant's guilt in the form of admissions by the defendant and the defendant's boyfriend and in the form of testimony by the defendant's house mate who witnessed the defendant selling drugs. Harkins v. State, 281 Ga. App. 512, 636 S.E.2d 698 (2006).

Sufficient evidence supported the defendant's convictions of trafficking in cocaine, possession of marijuana with intent to distribute, and possession of cocaine with intent to distribute within 1,000 feet of a school, despite an argument on appeal that no evidence of either actual or constructive possession was presented, as: (1) sufficient additional evidence, albeit circumstantial, tied the defendant to said crimes and established more than the defendant's mere presence to the drugs seized; and (2) the proved facts excluded any reasonable hypotheses that a crime could have been committed by anyone else. Slaughter v. State, 282 Ga. App. 276, 638 S.E.2d 417 (2006).

There was sufficient evidence to support convictions of possession of cocaine with intent to distribute under O.C.G.A. § 16-13-30(b), possession of cocaine with intent to distribute within 1,000 feet of a housing project under O.C.G.A. § 16-13-32.5(b), and possession of cocaine with intent to distribute within 1,000 feet of a public school under O.C.G.A. § 16-13-32.4(a), based on the traffic to and from the defendant's trailer an investigator witnessed, the hand-to-hand exchanges the investigator witnessed, the 1.66 grams of crack cocaine, broken into pieces, that was recovered after one hand-to-hand exchange, and the fact that the trailer park was within 1,000 feet of a housing project and a public school. Smith v. State, 291 Ga. App. 353, 662 S.E.2d 176 (2008).

Given an alternative school's security officer's actual observation of a hand-to-hand exchange from a juvenile to another student at the school and the discovery of marijuana in the recipient's hand immediately thereafter, the only reasonable hypothesis was that the juvenile had just possessed the marijuana satisfying former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6). In the Interest of T. M., 303 Ga. App. 322, 693 S.E.2d 574 (2010).

Officer's testimony regarding the location of parks, schools, and public housing in the area, the distance of which was confirmed through use of a global positioning system, supported the defendant's convictions for possession of marijuana with the intent to distribute within 1,000 feet of public housing, within 1,000 feet of a state park, and within 1,000 feet of a school. Evans v. State, 318 Ga. App. 706, 734 S.E.2d 527 (2012).

- Evidence that juvenile was in the same dressing room with another boy and departed the area just before marijuana was discovered on the other boy and that the juvenile was later found to have $269 in the juvenile's possession was not sufficient to support a delinquency adjudication for violation of O.C.G.A. § 16-13-32.4. In re A.D.C., 228 Ga. App. 829, 493 S.E.2d 38 (1997).

- Defendant was not entitled to an affirmative defense jury instruction under O.C.G.A. § 16-13-32.4(g), relating to prohibited conduct occurring entirely inside a private residence, in a possession of drugs with intent to distribute within 1,000 feet of a school in violation of § 16-13-32.4(a) case; there was no evidence that the affirmative defense was applicable as there was no evidence that the drug possession was not for the purpose of financial gain. Harkins v. State, 281 Ga. App. 512, 636 S.E.2d 698 (2006).

- After the defendant was found guilty of possessing with intent to distribute methamphetamine within 1,000 feet of an elementary school, the court of appeals erred in affirming the trial court's denial of the defendant's request for a jury instruction on an affirmative defense set out in O.C.G.A. § 16-13-32.4 because a criminal defendant was not required to admit anything, in the sense of acknowledging that any particular facts were true, in order to raise an affirmative defense; there only needed to be slight evidence supporting the theory of the charge; and the defendant did not need to present evidence to support the theory of an affirmative defense if the state's evidence raised the issue. Pennington v. State, 306 Ga. 854, 834 S.E.2d 63 (2019).

There was at least slight evidence at trial that the defendant's possession of methamphetamine took place entirely within the shed which was the defendant's residence as the traces of methamphetamine residue were found inside the shed and the setup described by witnesses as an "active methamphetamine lab" was found inside the shed and, thus, the evidence supported the instruction on the affirmative defense for when the prohibited conduct took place entirely within a private residence, when no person 17 years of age or younger was present in such private residence, and the prohibited conduct was not carried on for purposes of financial gain. Pennington v. State, 354 Ga. App. 701, 841 S.E.2d 417 (2020).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state statutes prohibiting sale or possession of controlled substances within specified distance of schools, 27 A.L.R.5th 593.

Validity, construction, and application of state statutes enhancing penalty for sale or possession of controlled substances within specified distance of playgrounds, 23 A.L.R.6th 679.

What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - marijuana offenses under 8 U.S.C.A. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 1.

What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - cocaine and crack cocaine offenses under 8 U.S.C.A. § 1101(a)(43)(B), 76 A.L.R. Fed. 2d 61.

What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - heroin offenses under 8 U.S.C.A. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 133.

What constitutes "aggravated felony" for which aliens can be deported or removed under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - illicit methamphetamine offenses under 8 U.S.C.A. § 1101(a)(43)(B), 78 A.L.R. Fed. 2d 151.

What constitutes "aggravated felony" for which alien can be deported or removed under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(A)(iii)) - Miscellaneous or unspecified narcotics offenses under 8 U.S.C.A. § 1101(a)(43)(B), 79 A.L.R. Fed. 2d 335.