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Georgia Drug Laws: Drug Crimes and Common Defenses

Page Pate discusses the different types of drug crimes in Georgia and some defense our firm has used to win these cases at trial.

Over the past 20 years, our firm has handled a lot of drug cases in Georgia courts. We’ve been able to get some of them dismissed because the evidence was not there. We’ve won some motions to suppress prior to trial, and we’ve even taken many of these cases to trial and been successful. In almost all of these cases, our client or maybe a friend or family member, they want to understand the process. I mean, what really is illegal under Georgia law? What are the types of Georgia drug crimes out there? If you’re charged with something like this, you also want to know what kind of defenses do you have? What are some things that you, Mr. Lawyer, have done in other cases to win them, to keep someone from being convicted in a Georgia drug case?

Well, to start out with, let’s talk about the types of drug crimes under Georgia law. The first one, the least serious, is simple possession. That basically means that someone is in possession of drugs that they shouldn’t have. This can apply to marijuana, cocaine, methamphetamine, even prescription medication. As long as the person has the drug and they’re not… they don’t have a prescription for it or some other legitimate legal reason to possess it, then that can be illegal under Georgia law. Misdemeanors for marijuana, simple possession. But for most other cases, even just simple possession is a felony offense. Depending upon the amount of the drug, it can even be as serious as drug trafficking.

But before we get to drug trafficking, there is possession with intent, which is a step up from simple possession. Possession with intent basically means a person has drugs with the intention of selling them or distributing them. The way they show that is to suggest that maybe the person has such a large quantity of drugs that it’s more than personal use. Maybe the person is found to have drugs and a lot of cash with them, maybe some scales or baggies, some other item that suggests that it’s more than just personal use, that they have the drugs with the intention of giving them or selling them to somebody else.

Distribution is the actual act of selling or distributing. It doesn’t have to be for profit or money. That differs from possession with intent because no longer is it just, “You’ve got the drugs and we think you’re going to sell them. We’ve actually caught you in the act of distributing or selling the drugs.” We usually see these cases in undercover sting operations or informants who are working for the state, they’re dealing with a defendant or someone who’s not a defendant yet but a target, and they try to do a drug transaction, either buying or selling drugs. Many times, they try to record it on video or audiotape, and then they’ll bring a distribution charge. And distribution is generally a little more serious than possession with intent.

The most serious drug crime under Georgia law is definitely drug trafficking. Drug trafficking can be any type of drug offense. It can be possessing, possessing with intent, distributing. It can be manufacturing. The key to a trafficking charge is the quantity of drugs involved in the case. There are certain threshold limits set by Georgia law that trigger certain mandatory minimum sentences, all the way from five years for a simple marijuana case with a trafficking quantity up to 10 years, 15 years, and even 25 years in some cases depending upon the amount of drugs. The amount is different for different types of drugs, and that’s all set forth in the statute.

Well, how do we defend drug cases? A lot of different ways, and obviously each case is different. It depends on the facts of that particular case and the evidence that the state has. But there are some basic, general defenses that apply to many different kinds of drug cases. The first is, “Can the state prove the type and the amount of drug that they’re saying the person had?” That’s really important in trafficking cases where that weight, that quantity triggers a mandatory minimum sentence, but it’s also important in other cases, like these synthetic marijuana cases, where the state many times is not really sure what it is they have. Although the state will often have these drugs tested by a G.B.I. crime lab, they’re not always accurate. So, in many cases, we’ve asked experts to review those tests to determine if additional testing is necessary, or if they really have the drug that they say they have. Now in some cases it’s not going to be an issue. They’ve got a bale of marijuana. Clearly that’s marijuana and that’s easy to test. But in some cases, it can be an important factor to consider.

Evidence of possession. There are really two types of possession under Georgia law. The state can show that a defendant is in actual possession of drugs. Say there are drugs in the person’s pocket, drugs in a briefcase, a backpack. Whatever the case may be, they show that that person has actual possession. He’s got the drugs. But that’s not the only way to show possession. There’s another type of possession called constructive possession. Let’s say that a person is storing drugs at his house, but he’s not at his house. He’s at work, or he’s even in some other city. But he knows the drugs are there, and he has both the ability and the intention of, at some point, going back to his house and getting the drugs. So even though the drugs are not on him, he still has the ability to go get them. So that’s constructive possession. Either constructive or actual possession can be sufficient for a drug case under Georgia law.

Inferences and equal access. The state may want to suggest – let’s go back to the house example – that they found drugs in this person’s house and even though he’s not there, we’re going to say these drugs belong to him. We haven’t seen him with the drugs. We don’t have any information that he’s been selling them or buying them, but we want to use the inference that because it’s his house and the drugs are there, they belong to him. The state can do that, but if they do that, then the defense can introduce evidence that other people had access to this house. Maybe he has a roommate or even a spouse or a child. If other people have access – and this is not just a house, it can apply to a car as well – then the state cannot convict the person based solely on that inference that they’re trying to prove. So equal access is an important defense when the state is trying to prove that constructive possession by using an inference.

Entrapment. It’s a real popular defense. Many clients ask us about it. It’s a great defense, and we’ve used it successfully in certain cases. But it’s not right for every case. You have to have some specific facts that will support the defense if you intend to use it successfully. First of all, the person being charged, the defendant, has to be someone who did not come up with the idea for the drug transaction. And entrapment usually occurs when there’s some sort of sting operation. They’ve sent in an informant or an undercover agent to try to buy or sell drugs from your client, from the defendant, and they tried too hard. If the person is not predisposed to being involved in a drug deal, it wasn’t his idea, the state came up with it or the informant came up with it or the agent came up with it, then you may have an entrapment defense.

The second thing to consider after getting past the fact that it wasn’t the defendant’s idea is what did the state do? Did they just make one phone call and say, “Hey, meet us here. We want to sell you drugs,” or did they keep on after the person, call after call, visit after visit? If they used undue persuasion or pressure, then you may have an entrapment defense. If you can raise an entrapment defense, then it’s up to the state to disprove it beyond a reasonable doubt. That’s why it can be a very effective defense at trial for the right case.

Motions to suppress evidence. I put that at the bottom. It really should go at the top because, in almost every drug case, you want to consider filing a motion to suppress. If the agents have searched a house, a business, or even a car, they have to have probable cause or consent. So even in cases where they have a warrant, there may be something wrong with the warrant. Perhaps they didn’t tell the magistrate judge everything that the judge needed to know. Perhaps they misled the judge, or perhaps they searched a car without a warrant, saying they had probable case in exigent circumstances, but maybe they didn’t. Maybe they didn’t have cause. There’s a lot of new case law out there now that really restricts the ability of police to search vehicles, cellphones, things of that nature. As a defense lawyer who handles these cases all the time, we’re up to speed on those challenges. We’ve been successful in filing motions to suppress. You want to file them early. You want to get that hearing. In many cases, if you can get the evidence suppressed, then the case disappears.

So, Georgia drug crimes, a lot of different types of offenses, a lot of different types of defenses. It all depends on the particular facts of the case. If you’ve been charged with a drug crime in Georgia or you know someone who has, I know it can be confusing. These cases can sometimes take a long time from start to finish. But if you need a lawyer, someone who’s been through this process before, we’ve been doing it for 20 years and we’ve been very successful both in resolving the cases before trial and winning them if they go all the way to trial. So give us a call and I will do my very best to help.