B Purchase, Possession, or Manufacture of Controlled Substances
The most important criminal provisions of the Controlled Substances Act appear in §§ 16-13-30, 16-13-31, and16-13-33. Section 16-13-30(a) prohibits the purchase, possession, or control of a controlled substance and subsection (b), the more serious crime, prohibits the manufacture, delivery, distribution, dispensing, administration, sale or possession with intent to distribute all controlled substances.Subsections (c) through (h) outline the punishment provisions for subsection (a) and (b) offenses with regard to each of the five schedules. Generally, subsection (b) offenses are more heavily punished than subsection (a) offenses and crimes involving the Schedule I and II substances are treated more severely than those involving Schedules III, IV and V. All are felonies and several provide enhanced punishment for recidivists.
Subsection (i) of § 16-13-30 outlines a felony for the possession, manufacture, delivery, distribution, dispensing, administration, purchase, sale or possession with intent to distribute of a counterfeit controlled substance. Subsection (j) broadly prohibits the possession, manufacture, delivery, distribution, dispensing, administration, purchase, sale or possession with intent to distribute of marijuana, an unscheduled drug. This offense is a felony, punishable by one to ten years imprisonment, with enhanced punishment for those whose violation involves more than 10 pounds of marijuana.Subsection (k) makes it unlawful for any person to hire, solicit, engage, or use an individual under the age of 17 years, in any manner, for the purpose of manufacturing, distributing, or dispensing, on behalf of the solicitor, any controlled substance, counterfeit substance, or marijuana unless the manufacturing, distribution, or dispensing is otherwise allowed by law. This offense is a felony punishable by imprisonment for not less than five years nor more than 20 years or by a fine not to exceed $20,000, or both. Subsection (l) outlines the punishment provisions for subsection (a) and (b) offenses with regard to flunitrazepam, a Schedule IV controlled substance. These offenses are punishable as felonies, and enhanced punishment is provided for recidivists.
C Trafficking in Controlled Substances
Section 16-13-31 prohibits and punishes trafficking in (1) cocaine, (2) illegal drugs such as morphine or heroin, (3) marijuana, (4) methaqualone, and (5) methamphetamine or amphetamine. This Code section creates a schedule of punishments scaled to the amount of contraband involved, and there is a mandatory punishment for each gradation of the crime.
Section 16-13-31.1 prohibits and punishes trafficking in the amphetamine or methamphetamine commonly known as MDMA or ecstasy. This Code section creates a schedule of punishments scaled to the amount of MDMA or ecstasy involved, and there is a mandatory punishment for each gradation of the crime.
D Attempt and Conspiracy Offenses
Section 16-13-33 makes it a crime to conspire or attempt to commit any offense under the Act. Unlike the general attempt and conspiracy crimes,however, the § 16-13-33 offenses are punishable to the same extent as the object offenses toward which they are directed.Under the Act, the conspiracy offense and the object offense are separate crimes and do not merge.
E Head Shop Act
There are several other sections in the Act which define criminal offenses. Sections 16-13-32 through 16-13-32.2, the “Head Shop Act,” make it a misdemeanorfor any person or corporation, knowing the drug related nature of the object, to distribute to any person any drug related object.
F Counterfeiting of Controlled Substances
Section 16-13-30.1 punishes the counterfeiting of controlled substances. The punishment provision imposes imprisonment of one to ten years and/or fine of up to $25,000. Section 16-13-30.2provides that anyone who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance is guilty of a misdemeanor of a high and aggravated nature.Where under the evidence § 16-13-30.2 cannot be considered a lesser included offense of § 16-13-30.1, one who has been charged with violating § 16-13-30.1would not be entitled, upon request, to a charge on § 16-13-30.2 as a lesser included offense.
Both § 16-13-30.1 and § 16-13-30.2 prohibit the sale of fake illegal drugs. Using the same evidence, a reasonable trier of fact could find beyond a reasonable doubt that a defendant's conduct violates both§ 16-13-30.1, a felony, and § 16-13-30.2, a misdemeanor. Because the same conduct constitutes both a felony and a misdemeanor, therefore, the rule of lenity requires that the defendant be subjected to the penalties for the misdemeanor, rather than the felony.
G Possession of Ephedrine, Pseudoephedrine, or Phenylpropanolamine
Section 16-13-30.3(b) prohibits any person, other than a pharmacist, medical practitioner, or retail distributor, from knowingly possessing any product that contains an excessive amount of ephedrine, pseudoephedrine, or phenylpropanolamine. In addition, this provision prohibits any person from possessing any amount of these substances with the intent to manufacture amphetamine or methamphetamine. A violation of § 16-13-30.3(b) is a felony punishable by imprisonment for not less than one nor more than ten years.
Section 16-13-30.3(b.1) limits the sale and manner of sale of products containing pseudoephedrine so as to limit their use in the unlawful manufacture of methamphetamine. This Code provision makes it a misdemeanor to offer such products for retail sale without blister packaging and by self-service.In addition, it is a misdemeanor under this provision to deliver in a single over the counter sale more than three packages of any product containing pseudoephedrine or any number of packages that contain a combined total of more than nine grams of pseudoephedrine.A knowing violation of either of these prohibitions is punishable by a fine of not more than $500. A second or subsequent violation is punishable by not more than six months' imprisonment or a fine of not more than $1,000, or both.In a prosecution for a violation of either of these prohibitions, a retailer who is in compliance with Georgia Meth Watch would be entitled to a defense if it can establish that the violation occurred unknowingly.
Section 16-13-30.3(b.1) also makes it a misdemeanor for a retail distributor to purchase any product containing pseudoephedrine from any person or entity other than a licensed manufacturer or a licensed wholesale distributor. A second or subsequent violation is punishable as a misdemeanor of a high and aggravated nature.
Section 16-13-30.3(d) prohibits any person from possessing, controlling, manufacturing, delivering, distributing, dispensing, administering, purchasing, selling, or possessing with intent to distribute any substance containing any amount of ephedrine, pseudoephedrine, phenylpropanolamine, or any of their salts, optical isomers, or salts of optical isomers which have been altered from their original condition so as to be powdered, liquefied, or crushed. This prohibition does not apply to any substance which is possessed or altered for a legitimate medical purpose. A violation of § 16-13-30.3(d) is a felony punishable by imprisonment for not less than one nor more than ten years.
The prohibitions in § 16-13-30.3 do not apply to certain pediatric products and products exempted by the Georgia State Board of Pharmacy.
Section 16-13-30.4(g)(1) prohibits any person who sells, transfers, receives, or possesses a product containing pseudoephedrine from (1) knowingly failing to comply with the statute's reporting requirements, (2) knowingly making a false statement in a required report or record, or (3) knowingly or deliberately failing to obtain a required license or permit. A violation of § 16-13-30.4(g)(1) is punishable as a misdemeanor on the first offense and as a misdemeanor of a high and aggravated nature on the second and subsequent offenses.
Section 16-13-30.4(g)(2) prohibits any person from possessing, selling, transferring, or otherwise furnishing a product containing pseudoephedrine with the knowledge or intent that the product will be used in the unlawful manufacture of a controlled substance. A violation of § 16-13-30.4(g)(2) is punishable as a felony by imprisonment for not less than one nor more than 15 years or by a fine not to exceed $100,000, or both.
H Possession of Substances with Intent to Manufacture Controlled Substances
Section 16-13-30.5(a) prohibits any person from possessing, whether acquired through theft or other means, any substance with the intentto (1) use such substance in the manufacture of a Schedule I or Schedule II controlled substance, or (2) knowingly convey such substance to another for use in the manufacture of a Schedule I or Schedule II controlled substance. A violation § 16-13-30.5(a) is punishable as a felony by imprisonment for not less than one nor more than 15 years or by a fine not to exceed $100,000, or both.Section 16-13-30.5 does not apply where possession was by a person authorized by law to dispense, prescribe, manufacture, or possess the substance in question.
