(Code 1933, § 79A-9917, enacted by Ga. L. 1971, p. 271, § 1; Ga. L. 1973, p. 688, § 1; Ga. L. 1974, p. 221, § 3; Ga. L. 1976, p. 1083, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1997, p. 1377, § 2; Ga. L. 2004, p. 488, § 1; Ga. L. 2020, p. 753, § 2-3/SB 288.)
Cross references.- Detection of drugs by Department of Transportation enforcement officers, § 32-6-29.
Probation of first offenders, § 42-8-60 et seq.
Editor's notes.- Provisions added by Ga. L. 1976, p. 1083, § 1 were declared unconstitutional in State v. Millwood, 242 Ga. 244, 248 S.E.2d 643 (1978), insofar as they attempted to vest jurisdiction in municipal courts to try offenses against the state.
Ga. L. 1997, p. 1377, § 4, not codified by the General Assembly, provides: "It is the intent of the General Assembly to restore the law of this state to that which was generally understood to be the law prior to the decision of the Court of Appeals in Williams v. State, 222 Ga. App. 698, Case No. A96A1472, decided August 20, 1996, such that possession of one ounce or less of marijuana is a misdemeanor and the provisions of Code Section36-32-6 are applicable to such offenses."
Law reviews.- For article on the effect of nolo contendere plea on conviction, see 13 Ga. L. Rev. 723 (1979). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For note, "Substantive Due Process and Felony Treatment of Pot Smokers: The Current Conflict," see 2 Ga. L. Rev. 247 (1968). For note on 1992 amendment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992). For comment on Tant v. State, 123 Ga. App. 760, 182 S.E.2d 502 (1971), advocating additional reform of Georgia's system of appellate review of criminal cases, see 9 Ga. St. B.J. 490 (1973).
JUDICIAL DECISIONS
Effect of 1997 amendment.
- The 1997 amendment to O.C.G.A. § 16-13-2(b) simply restored jurisdiction over cases involving possession of marijuana, less than one ounce, to the state courts, in light of the decision in Williams v. State, 222 Ga. App. 698, 475 S.E.2d 667 (1996), and did not impact on defendant's prosecution in superior court, which had jurisdiction to try misdemeanor or felony offenses. Hicks v. State, 228 Ga. App. 235, 494 S.E.2d 342 (1998).
Three days before the defendant pled guilty to a second offense of possession of less than an ounce of marijuana, the governor signed legislation amending O.C.G.A. § 16-13-2 to make possession of this amount a misdemeanor offense in all cases, the trial court erred in entering judgment on a felony conviction. Calbreath v. State, 235 Ga. App. 638, 510 S.E.2d 145 (1998).
Trial court erred in denying defendant's motion to dismiss the indictment against defendant for felony possession of less than an ounce of marijuana because the legislature did not include a savings clause in the 1997 amendment of O.C.G.A. § 16-13-2 and clearly expressed the legislature's intent that possession of less than an ounce of marijuana is a misdemeanor offense. Hanson v. State, 271 Ga. 145, 518 S.E.2d 111 (1999).
Former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2) was permissive, not mandatory and absent abuse of discretion, the trial judge's discretion will not be disturbed. Owens v. State, 135 Ga. App. 497, 218 S.E.2d 168 (1975).
Construction with other Code sections.
- When one count of the accusation filed by the district attorney recited that it was charged under O.C.G.A. § 16-13-30, which is a felony which may not be brought by accusation pursuant to O.C.G.A. § 17-7-70 without the assent of the accused, not on record in the case, nor was it one of those felonies listed in O.C.G.A. § 17-7-70.1 which, under circumstances not present in the case, may be pursued by accusation, the count was considered by the court to be brought under O.C.G.A. § 16-13-2(b), misdemeanor possession of less than an ounce of marijuana. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).
Constitutionality of O.C.G.A.
§ 16-13-30(j)(2). - Difference between punishments for purchase of marijuana under O.C.G.A. § 16-13-30(j)(2) and possession of the same amount under O.C.G.A. § 16-13-2(b) does not constitute a denial of equal protection because imposition of a felony sentence under the former applies equally to all those accused of purchasing any amount of the controlled substance and, thus, there is no unconstitutional disparate treatment of similarly situated persons. State v. Jackson, 271 Ga. 5, 515 S.E.2d 386 (1999).
Constitutionality of
§ 16-13-2(b). - O.C.G.A. § 16-13-2(b) did not violate due process by creating a mandatory presumption of guilt. The court interpreted the statute, as the court had before, to render the statute valid and to carry out the legislative intent of establishing that possession of an ounce or less of marijuana was a misdemeanor. In the Interest of D.H., 285 Ga. 51, 673 S.E.2d 191 (2009).
Preponderance of the evidence test.
- Although O.C.G.A. § 16-13-2, which set forth the trial court's authority to institute an alternative to traditional sentencing in drug possession cases, did not establish the state's burden in terminating such situation, the Court of Appeals of Georgia found it analogous to revocation of probation or of first offender status; hence, the preponderance of the evidence test applicable to first offender status was equally applicable in cases involving an alleged violation of a drug court contract. Wilkinson v. State, 283 Ga. App. 213, 641 S.E.2d 189 (2006).
Once defendant begins serving a sentence it may not be increased. Perdue v. State, 155 Ga. App. 802, 272 S.E.2d 766 (1980).
Attempt to make revoked probated sentence consecutive to intervening sentence amounts to increase in punishment. Perdue v. State, 155 Ga. App. 802, 272 S.E.2d 766 (1980).
Time served on probation must be credited to any sentence received, including those cases involving first offender probation. Perdue v. State, 155 Ga. App. 802, 272 S.E.2d 766 (1980).
Time served in treatment program.
- Probationer, who elected to plead guilty and underwent alternative treatment in a drug court program offered under O.C.G.A. § 16-13-2(a), was not entitled to credit for time spent in treatment when the probationer was subsequently terminated from the program and sentenced on the original crime; moreover, a defendant in the probationer's position, who pled guilty and utilized the benefits of a rehabilitative option in order to avoid an adjudication of guilt, could not withdraw the plea as a matter of right under O.C.G.A. § 17-7-93(b). Stinson v. State, 279 Ga. App. 107, 630 S.E.2d 553 (2006).
Exclusion from drug court program did not violate double jeopardy ban.
- Denying a defendant access to the drug court program under O.C.G.A. § 16-13-2(a), which had been a condition of the defendant's plea bargain, was not a double jeopardy violation since the trial court did not involuntarily withdraw the guilty plea, but offered the defendant the option of withdrawing the plea or accepting one of several alternative sentences. Morever, agreeing to attend drug court was not a "sentence," and completion of the drug court contract was dependent on the defendant's completing the drug court program. Evans v. State, 293 Ga. App. 371, 667 S.E.2d 183 (2008).
Search of probationer's residence for drugs.
- Trial court properly denied the defendant's motion to suppress because the court did not err in determining that the law-enforcement officers who searched the defendant's home had reasonable suspicion to suspect criminal activity or violations of probation based on the probation officer's concerns that the defendant was using drugs and attempting to avoid detection; thus, the search was conducted for probationary purposes, rather than for law-enforcement purposes. Whitfield v. State, 337 Ga. App. 167, 786 S.E.2d 547 (2016).
Former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2) did not deal with question of guilt or innocence, but referred solely to conditional discharge for first offenders charged with possession of one ounce or less of marijuana. Tift v. State, 133 Ga. App. 455, 211 S.E.2d 409 (1974).
Jury not to be informed of judge's refusal to grant conditional discharge.
- In making determination of guilt or innocence jury should not be informed that accused would have qualified for conditional discharge but for fact that judge chose not to utilize the authority granted by former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2). Tift v. State, 133 Ga. App. 455, 211 S.E.2d 409 (1974).
Evidence of weight required to establish felony.
- While the state established that defendant was in possession of marijuana, there was indeed no evidence to establish its weight; and in the absence of such evidence there was no basis for treating the offense as a felony. Whatley v. State, 189 Ga. App. 173, 375 S.E.2d 245, cert. denied, 189 Ga. App. 913, 375 S.E.2d 245 (1988).
Proof of weight.
- To discharge the burden of proving that the weight of the marijuana exceeded one ounce, it is not necessary for the state to come forward with evidence of how many grams equal an ounce, even if the state's witnesses testify about the weight of the marijuana in terms of grams; when O.C.G.A. § 16-13-2(b) refers to an "ounce" of marijuana, the statute refers, as a matter of law, to an avoirdupois ounce, which is the equivalent of, when rounded up to the nearest hundredth of a gram, 28.35 grams, and the number of grams in an ounce is not something that varies from case to case or is open to reasonable dispute. Gaudlock v. State, 310 Ga. App. 149, 713 S.E.2d 399 (2011).
To authorize felony punishment.
- When evidence is in dispute as to the amount defendant possessed, the jury must be instructed that to authorize felony punishment, the jury must find possession of more than one ounce. Jones v. State, 151 Ga. App. 560, 260 S.E.2d 555 (1979).
Evidence insufficient for felony status.
- Offense of possession of less than one ounce of marijuana, committed prior to the decision in Williams v. State, 222 Ga. App. 698, 475 S.E.2d 667 (1996), was a misdemeanor, and the conviction of defendant, with a prior conviction for the same offense, did not have felony ramifications. Hicks v. State, 228 Ga. App. 235, 494 S.E.2d 342 (1998).
Evidence insufficient to show possession.
- Evidence was insufficient to support a conviction of possession of less than one ounce of marijuana when a marijuana cigarette was found in a car in which the defendant was riding. The circumstantial evidence was entirely consistent with the defendant's theory that the defendant was merely a passenger in the car and had nothing to do with the marijuana cigarette; there was no evidence that the defendant was uncooperative, attempted to flee police, behaved erratically, or appeared to be under the influence of drugs; there was no marijuana residue found near the defendant or on the defendant's person; the defendant did not possess drug paraphernalia; and a witness who was also a passenger in the car testified that the defendant, who had gotten a ride home from a nightclub with the driver, did not smoke the cigarette and was not in possession of marijuana on the evening in question. Kier v. State, 292 Ga. App. 208, 663 S.E.2d 832 (2008).
Evidence was insufficient to convict the defendant of possession of one ounce or less of marijuana because, although marijuana was found in the residence when the residence was searched, the defendant was not present at the time; the evidence established that the defendant shared the residence with the defendant's co-conspirator and that at least one other man had been living there leading up to the search of the residence; and the state did not present evidence that the marijuana found in the search had ever been in the possession or control of the defendant. Cummings v. State, 345 Ga. App. 702, 814 S.E.2d 806 (2018), cert. denied, No. S18C1280, 2018 Ga. LEXIS 728 (Ga. 2018).
Evidence sufficient to show possession.
- By showing circumstantially that defendant and two codefendants had equal access to the cocaine and marijuana in defendant's truck, the evidence established that all three were parties to the crime and, thus, guilty of joint constructive possession of the drugs under O.C.G.A. §§ 16-13-2(b) and16-13-30(b). Davis v. State, 270 Ga. App. 777, 607 S.E.2d 924 (2004).
Despite the defendant's denial of any knowledge of the existence of drugs and other contraband in a motel room in which the defendant was the sole occupant, evidence of the contraband found in close proximity to other evidence which the defendant admitted owning, when coupled with the fact that only one key to the room existed, which the defendant admitted to having, and that no one had brought anything into the room since the person the defendant alleged was the owner of the evidence had left, was sufficient to support the defendant's convictions under O.C.G.A. §§ 16-11-106,16-13-2,16-13-30,16-13-31. Hall v. State, 283 Ga. App. 266, 641 S.E.2d 264 (2007).
Evidence supported convictions for misdemeanor marijuana possession and cocaine trafficking under O.C.G.A. §§ 16-13-2 and16-13-31 when officers executing a search warrant found the defendant alone in a house near bags of marijuana and with the house containing over 28 grams of cocaine, a loaded handgun, and $596; furthermore, an officer conducting surveillance and using an informant had previously observed the defendant's involvement in the sale of drugs at the home. Boyd v. State, 291 Ga. App. 528, 662 S.E.2d 295 (2008).
There was sufficient evidence that the defendant, a juvenile, possessed marijuana under O.C.G.A. § 16-13-2(b). Although the marijuana was in the pocket of the defendant's companion, the defendant had rolling papers with which to smoke the marijuana, and both the defendant and the companion admitted that they had just bought the marijuana and were headed to a construction site to smoke the marijuana. In the Interest of D.H., 285 Ga. 51, 673 S.E.2d 191 (2009).
Because the presence of methamphetamine in defendant's urine constituted circumstantial evidence that defendant knowingly possessed the drug within three days prior to a urine test, and because the state did not have to prove where the drug was actually ingested, the evidence was sufficient to support defendant's conviction and venue under O.C.G.A. § 17-2-2(h). Harbin v. State, 297 Ga. App. 877, 678 S.E.2d 553 (2009).
Convictions of drug possession pursuant to O.C.G.A. §§ 16-13-2(b),16-13-28,16-13-30(a), and (e), were supported by sufficient evidence under circumstances in which, following a stop, an officer found a bag of marijuana in the defendant's pocket, and, after arresting the defendant, the officer also found $858 in the defendant's pockets and a bottle containing 16 pills of Alprazolam under the dashboard of the car the defendant had been driving; the pills were what remained of a 90-pill prescription issued five days before to a different person. Further, a bag of cocaine was later found in the patrol car where the defendant was held before backup officers arrived. Noellien v. State, 298 Ga. App. 47, 679 S.E.2d 75 (2009).
Trial court did not err in convicting the defendant of possession of cocaine with the intent to distribute, O.C.G.A. § 16-13-30(b), and possession of marijuana, O.C.G.A. § 16-13-2(b), because the circumstantial evidence established a meaningful connection between the defendant and the contraband, evidence which showed the defendant exercising power and dominion over the drugs found inside the wheel well on the front passenger's side of a car; the jury could infer that the drugs had been recently placed in the wheel well, and because the defendant had fled from the police, had been caught within arm's reach of the drugs, and had a large amount of cash in the defendant's pockets, the jury could infer that the defendant was a drug dealer and that the defendant had placed the drugs in the wheel well to avoid being prosecuted for possessing the drugs. Wright v. State, 302 Ga. App. 332, 690 S.E.2d 654 (2010).
Evidence was sufficient to sustain defendant's conviction for possession of more than one ounce of marijuana in violation of O.C.G.A. §§ 16-13-2(b) and16-13-30(j) because the state adduced evidence at trial that the defendant had possession of 28.8 grams of marijuana, which was, by definition, more than one ounce of marijuana. Gaudlock v. State, 310 Ga. App. 149, 713 S.E.2d 399 (2011).
Evidence was sufficient to authorize the defendant's conviction for possession of marijuana in violation of O.C.G.A. § 16-13-2(b) because the defendant was the owner and occasional driver of the vehicle and, thus, was presumed to have exclusive possession and control of the marijuana found therein; the defendant had knowledge that there was marijuana inside the vehicle and knew the exact location in the vehicle where the marijuana was located. Parker v. State, 317 Ga. App. 93, 730 S.E.2d 717 (2012).
Defendant's conviction for drug possession was upheld on appeal because there was sufficient evidence to support the defendant's conviction based on the defendant admitting to owning the safe where approximately 80 grams of marijuana were located. Franklin v. State, 325 Ga. App. 728, 754 S.E.2d 774 (2014).
Evidence was sufficient to convict the defendant of trafficking in methamphetamine, possession of oxycodone and less than one ounce of marijuana, and driving while the defendant's license was suspended because the defendant knew the defendant's license to drive was suspended, and because the defendant knowingly had both the power and intention to exercise dominion or control over the controlled substances found in the backpack and was in constructive possession of those substances as the defendant was driving the car in which the backpack was located, and the defendant was linked to the backpack by the defendant's control of the car and evidence that the backpack contained a copy of a fake driver's license the defendant gave to an officer. Armstrong v. State, 325 Ga. App. 690, 754 S.E.2d 652 (2014).
Evidence was sufficient to convict the defendant of possession of methamphetamine and misdemeanor possession of marijuana as the evidence sufficed to support the jury's finding that the defendant possessed the drugs found under a mattress because the drugs were located under the mattress directly underneath where the defendant sat; and the defendant possessed digital scales that appeared to have drug residue on the scales. Smith v. State, 331 Ga. App. 296, 771 S.E.2d 8 (2015).
Because the record showed that trace amounts of both marijuana and cocaine were found in the defendant's possession, and neither statute criminalizing possession of those substances required more, the evidence was sufficient to support the defendant's convictions for possession. Francis v. State, 345 Ga. App. 586, 814 S.E.2d 571 (2018).
State court indictment must affirmatively show first offense.
- State court, to invoke provisions of former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2(b)), in indictment/accusation forming basis for charges, must affirmatively show that accused was charged with possession of one ounce or less of marijuana and that the accused was a first offender, otherwise all proceedings held in state court were a nullity. Kent v. State, 129 Ga. App. 71, 198 S.E.2d 712 (1973).
Because there was no evidence that the witness was ineligible for first-offender treatment under the probation for first offenders statute in 2009 based on the witness pleading guilty in 2004 to misdemeanor drug possession, and being sentenced as a first offender under the conditional discharge for possession of a controlled substance as a first offense statute, the witness's failure to inform the court in the 2009 case that the witness had formerly been given first offender treatment in the misdemeanor drug-possession case did not present a credibility issue, and trial counsel was not ineffective in failing to cross-examine the witness about being twice sentenced as a first offender to attack the witness's credibility. Brittain v. State, 329 Ga. App. 689, 766 S.E.2d 106 (2014).
Jury need not make special finding as to amount where evidence not in conflict.
- When evidence is not in conflict as to amount, it is not necessary for the court to charge the jury that the jury must find amount specially. Coffey v. State, 141 Ga. App. 254, 233 S.E.2d 243 (1977).
Necessity of jury instruction on misdemeanor possession as lesser included offense.
- Defendant was improperly convicted of purchasing marijuana under O.C.G.A. § 16-13-30(j)(1) because the trial court should have given a jury instruction on the lesser included offense of misdemeanor possession of less than one ounce of marijuana under O.C.G.A. § 16-13-2(b) as the defendant did not pay for the marijuana and testified that the defendant did not intend to purchase the marijuana. Johnson v. State, 296 Ga. App. 697, 675 S.E.2d 588 (2009), cert. denied, No. S09C1191, 2009 Ga. LEXIS 420 (Ga. 2009).
Jurisdiction of motion to withdraw guilty plea.
- Since judgments of conviction are not entered in cases proceeding under the First Offender Act, O.C.G.A. § 42-8-60 et seq., unless the defendant violates the terms of defendant's probation, the sentencing court retains jurisdiction both for resentencing and to consider a motion to withdraw a guilty plea after the end of the term of court in which the plea was entered. Tripp v. State, 223 Ga. App. 73, 476 S.E.2d 844 (1996).
Withdrawal of guilty plea.
- Trial court did not abuse the court's discretion in denying the defendant's motion to withdraw a guilty plea to charges of trafficking in methamphetamine and possession of marijuana as the defendant acknowledged, and the record showed, that the trial court advised the defendant of the maximum allowable sentence on both a trafficking in methamphetamine and possession of marijuana charge, as well as the mandatory minimum sentence on the former offense; further, despite the fact that the waiver of rights form the defendant signed incorrectly stated that the maximum term of imprisonment was 30 years, rather than 31 years, given the aforementioned, the mistake did not amount to a manifest injustice requiring reversal of the court's refusal to allow withdrawal. Rodriguez v. State, 280 Ga. App. 423, 634 S.E.2d 182 (2006).
Exclusion for drug court program did not violate equal protection.
- Defendant was excluded from a drug court program under O.C.G.A. § 16-13-2(a) because the defendant had a mental illness, was under a doctor's supervision, and was taking four prescription medications, not because of the defendant's HIV status. As the state's interest in preserving the defendant's health was rationally related to the state's decision to exclude the defendant from the program, there was no equal protection violation. Evans v. State, 293 Ga. App. 371, 667 S.E.2d 183 (2008).
Appeals under section are discretionary.
- Because the defendant was sentenced after unsuccessful participation in an O.C.G.A. § 16-13-2(a) drug court program, the defendant's appeal was heard despite failing to comply with the discretionary appeal procedure of O.C.G.A. § 5-6-35(a)(5); in such cases, hearing appeals was discretionary, but that had not been clear prior to the instant case so the appellate court heard the defendant's case. Andrews v. State, 276 Ga. App. 428, 623 S.E.2d 247 (2005).
Because the drug court program under O.C.G.A. § 16-13-2(a) is similar to the first offender statute of O.C.G.A. § 42-8-60 and because § 42-8-60 appeals are discretionary under O.C.G.A. § 5-6-35(a)(5), the discretionary appeal procedures of O.C.G.A. § 5-6-35(a)(5) must be followed when appealing after violation of the conditions of the drug court program. Andrews v. State, 276 Ga. App. 428, 623 S.E.2d 247 (2005).
Cited in Papp v. State, 129 Ga. App. 718, 201 S.E.2d 157 (1973); Russell v. State, 132 Ga. App. 35, 207 S.E.2d 619 (1974); Stinnett v. State, 132 Ga. App. 261, 208 S.E.2d 16 (1974); Wilson v. State, 136 Ga. App. 70, 221 S.E.2d 62 (1975); McCann v. State, 137 Ga. App. 445, 224 S.E.2d 99 (1976); Smith v. State, 139 Ga. App. 515, 228 S.E.2d 705 (1976); Hawkins v. State, 141 Ga. App. 31, 232 S.E.2d 377 (1977); Alexander v. State, 239 Ga. 810, 239 S.E.2d 18 (1977); Aycock v. State, 146 Ga. App. 489, 246 S.E.2d 489 (1978); State v. Millwood, 242 Ga. 244, 248 S.E.2d 643 (1978); Corbitt v. State, 166 Ga. App. 311, 304 S.E.2d 123 (1983); Sloan v. State, 172 Ga. App. 620, 323 S.E.2d 834 (1984); Barnes v. State, 255 Ga. 396, 339 S.E.2d 229 (1986); Luke v. State, 178 Ga. App. 614, 344 S.E.2d 452 (1986); Banks v. State, 229 Ga. App. 414, 493 S.E.2d 923 (1997); Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000); Johnson v. State, 289 Ga. App. 27, 656 S.E.2d 161 (2007); Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013); Smith v. State, 322 Ga. App. 549, 745 S.E.2d 771 (2013); Freeman v. State, 329 Ga. App. 429, 765 S.E.2d 631 (2014); State v. Charles, 344 Ga. App. 456, 810 S.E.2d 627 (2018); Doe v. State, 303 Ga. 237, 811 S.E.2d 413 (2018).
OPINIONS OF THE ATTORNEY GENERAL
Prosecuting in superior court for possessing one ounce or less makes crime felony punishable as misdemeanor under former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2(b)) and does not invoke former Code 1933, § 27-901 (see now O.C.G.A. § 17-6-1). 1974 Op. Att'y Gen. No. U74-79.
RESEARCH REFERENCES
Am. Jur. 2d.
- 25 Am. Jur. 2d., Drugs and Controlled Substances, § 207.
Insanity Defense, 41 POF2d 615.
C.J.S.- 14 C.J.S., Chemical Dependents, § 13 et seq. 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2359 et seq. 28A C.J.S., Drugs and Narcotics, § 489 et seq.
U.L.A.- Uniform Controlled Substances Act (U.L.A.) § 407.
ALR.- Federal prosecutions based on manufacture, importation, transportation, possession, sale, or use of LSD, 22 A.L.R.3d 1325.
Sufficiency of prosecution proof that substance defendant is charged with possessing, selling, or otherwise unlawfully dealing in, is marijuana, 75 A.L.R.3d 717.
Validity of a state statute imposing mandatory sentence or prohibiting granting of probation or suspension of sentence for narcotics offenses, 81 A.L.R.3d 1192.
Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225.