As used in this article, the term:
(0.5) "Addiction" means a primary, chronic, neurobiologic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. It is characterized by behaviors that include the following: impaired control drug use, craving, compulsive use, and continued use despite harm. Physical dependence and tolerance are normal physiological consequences of extended opioid therapy for pain and are not the same as addiction.
(1.1) "Agency" means the Georgia Drugs and Narcotics Agency established pursuant to Code Section 26-4-29.
(2.1) "Board" means the State Board of Pharmacy or its designee, so long as such designee is another state entity.
(6.1) "Dangerous drug" means any drug, other than a controlled substance, which cannot be dispensed except upon the issuance of a prescription drug order by a practitioner authorized under this chapter.
(6.2) "DEA" means the United States Drug Enforcement Administration.
(12.05) "FDA" means the United States Food and Drug Administration.
(12.1) "Imitation controlled substance" means:
(17.1) "Noncontrolled substance" means any drug or other substance other than a controlled substance as defined by paragraph (4) of this Code section.
(19.1) "Patient" means the person who is the intended consumer of a drug for whom a prescription is issued or for whom a drug is dispensed.
(23.1) "Prescriber" means a physician, dentist, scientific investigator, or other person licensed, registered, or otherwise authorized under the laws of this state, or any other state or territory of the United States, to prescribe a controlled substance in the course of professional practice or research in this state.
(26.1) "Schedule II, III, IV, or V controlled substance" means a controlled substance that is classified as a Schedule II, III, IV, or V controlled substance under Code Section 16-13-26, 16-13-27, 16-13-28, or 16-13-29, respectively, or under the federal Controlled Substances Act, 21 U.S.C. Section 812.
(27.1) "Tolerance" means a physiologic state resulting from regular use of a drug in which an increased dosage is needed to produce a specific effect or a reduced effect is observed with a constant dose over time. Tolerance may or may not be evident during opioid treatment and does not equate with addiction.
(Code 1933, § 79A-802, enacted by Ga. L. 1967, p. 296, § 1; Ga. L. 1974, p. 221, § 1; Ga. L. 1978, p. 2237, § 1; Ga. L. 1979, p. 859, § 4; Ga. L. 1980, p. 1746, § 3; Ga. L. 1982, p. 3, § 16; Ga. L. 1982, p. 1264, §§ 1, 3; Ga. L. 1982, p. 2370, §§ 1, 2; Ga. L. 1982, p. 2403, §§ 10, 15; Ga. L. 1984, p. 22, § 16; Ga. L. 1985, p. 149, § 16; Ga. L. 1986, p. 10, § 16; Ga. L. 1986, p. 1555, §§ 1, 2; Ga. L. 1988, p. 1065, § 1; Ga. L. 1999, p. 643, § 5.1; Ga. L. 2003, p. 349, § 1; Ga. L. 2006, p. 125, § 2/SB 480; Ga. L. 2009, p. 859, § 4/HB 509; Ga. L. 2011, p. 659, § 1/SB 36; Ga. L. 2014, p. 353, § 1/SB 134; Ga. L. 2014, p. 866, § 16/SB 340; Ga. L. 2015, p. 5, § 16/HB 90; Ga. L. 2019, p. 1030, § 2/HB 213.)
The 2019 amendment, effective May 10, 2019, in paragraph (16), substituted a comma for the semicolon following "or resin" and "16-13-25;" for "16-13-25 and" in the middle, and added "; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3" at the end.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1986, substituted "stereoisomers" for "steroisomers" twice near the middle of subparagraph (17)(D).
Law reviews.- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 269 (2011). For article, "Crimes and Offenses: Controlled Substances," see 28 Ga. St. U.L. Rev. 269 (2011). For article on Crimes and Offenses: Crimes Against the Person, see 35 Ga. St. U.L. Rev. 19 (2018).
JUDICIAL DECISIONSANALYSIS
Definition of "manufacture" applies to the cultivation or planting of marijuana. Hunt v. State, 222 Ga. App. 66, 473 S.E.2d 157 (1996).
When a defendant possesses most of the objects and substances needed to "prepare" or "process" methamphetamine by the red phosphorous technique, a rational trier of fact, applying the broad definition of "manufacture" under O.C.G.A. § 16-13-21(15), may find beyond a reasonable doubt that the defendant was "preparing" or "processing" that drug. Murrell v. State, 273 Ga. App. 735, 615 S.E.2d 780 (2005).
"Distribute."
- Because defendant delivered cocaine to an informant and used a pager to aid in the cocaine's distribution, the evidence was sufficient to find defendant guilty of distributing cocaine and using a communication facility to facilitate a violation of the Georgia Controlled Substance Act, specifically violations of O.C.G.A. §§ 16-13-21(11) and16-13-32.3(a). Capers v. State, 273 Ga. App. 427, 615 S.E.2d 126 (2005).
Methaqualone.
- Because the inscription "714" signifies something associated with methaqualone, this inscription on the caps of bottles containing an unidentified substance is a label falsely identifying the contents as methaqualone. Luck v. State, 163 Ga. App. 657, 295 S.E.2d 584 (1982).
Possession outside of original container.
- One lawfully possessing a controlled substance may lawfully possess it out of its original container. Jones v. State, 145 Ga. App. 224, 243 S.E.2d 645 (1978).
Defendant's right to have substance analyzed by expert of defendant's choosing.
- Defendant charged with possession or sale of a prohibited substance has a general right to have an expert of defendant's choosing analyze it independently. When the defendant's conviction or acquittal is dependent upon identification of substance as contraband, due process of law requires that analysis of the substance not be left completely within province of state. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. denied, 431 U.S. 970, 98 S. Ct. 248, 53 L. Ed. 2d 1067 (1977).
Evidence sufficient to infer manufacturing.
- Evidence showed that defendant possessed a combination of items and substances generally found together solely for the purpose of manufacturing methamphetamine, and the evidence was sufficient to support reasonable inferences of "preparation" and "processing," pursuant to O.C.G.A. § 16-13-21(15), and thus of manufacturing, even though the evidence did not show that defendant had the completed drug or all of the items needed to manufacture the completed drug. Murrell v. State, 273 Ga. App. 735, 615 S.E.2d 780 (2005).
Jury instruction on possession of prescription drugs harmless.
- Although the trial court erred in charging the jury that only a person to whom, or for whose use, a controlled substance had been prescribed, sold or dispensed, may lawfully possess the same, in light of the overwhelming evidence against defendant, the error was harmless. Morris v. State, 212 Ga. App. 779, 442 S.E.2d 792 (1994).
Reduced jury instruction not erroneous.
- Trial court did not commit reversible error for failure to include in the court's charge a definition of "intent to distribute" when the transcript revealed that the trial court did charge the jury regarding intent, the meaning of distribution being left to the word's ordinary and common dictionary meaning. Watkins v. State, 206 Ga. App. 575, 426 S.E.2d 26 (1992).
Jury instruction insufficient.
- Jury charge failed to properly define the offenses of trafficking in methamphetamine and possession of methamphetamine with intent to distribute because all the jury was told was that it was a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., to traffic or possess with intent to distribute methamphetamine; the instructions given completely failed to inform the jury about the manner in which the offense of trafficking in methamphetamine or the offense of possessing methamphetamine with intent to distribute may have been committed. As such, the jury did not receive sufficient instructions to guide the jury in determining the defendant's guilt or innocence on these charges. Torres v. State, 298 Ga. App. 158, 679 S.E.2d 757 (2009).
Recharge equating attempt to distribute with completed distribution offense.
- There was no error in court's recharge equating possession with an attempt to distribute with the completed offense of distribution where the court instructed the jury according to the definitions set forth in O.C.G.A. § 16-13-21(7) and (11). Bowens v. State, 209 Ga. App. 130, 433 S.E.2d 102 (1993).
Imitation controlled substance.
- 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 the evidence appeared as a "dosage unit" based on color, shape, size, or markings or 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).
Rule of lenity did not apply in sale of imitation controlled substance.
- 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 sufficient for attempt to traffic methamphetamine.
- Sufficient evidence existed to support the defendant's conviction for attempted trafficking by manufacturing methamphetamine based on the evidence that the defendant lived at the residence wherein the meth lab was discovered as shown by the owner's testimony and another witness who testified that the defendant slept at the home nightly and material used in the red phosphorous process for manufacturing methamphetamine was seized from the residence. Franks v. State, 325 Ga. App. 488, 758 S.E.2d 604 (2013).
Cited in Green v. State, 124 Ga. App. 469, 184 S.E.2d 194 (1971); Dunkum v. State, 138 Ga. App. 321, 226 S.E.2d 133 (1976); Robinson v. State, 244 Ga. 15, 257 S.E.2d 523 (1979); Parks v. State, 150 Ga. App. 446, 258 S.E.2d 66 (1979); Baxter v. State, 154 Ga. App. 861, 270 S.E.2d 71 (1980); Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981); Abrams v. State, 164 Ga. App. 553, 297 S.E.2d 324 (1982); Skinner v. State, 182 Ga. App. 370, 355 S.E.2d 726 (1987); Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998); Massey v. State, 267 Ga. App. 482, 600 S.E.2d 437 (2004); Thomas v. State, 287 Ga. App. 500, 651 S.E.2d 801 (2007); Carolina Tobacco Co. v. Baker, 295 Ga. App. 115, 670 S.E.2d 811 (2008); Armstrong v. State, 298 Ga. App. 855, 681 S.E.2d 662 (2009).
Marijuana
Either spelling of word "marijuana" or "marihuana" is accepted as being correct. Allen v. State, 120 Ga. App. 533, 171 S.E.2d 380 (1969).
Leaves of marijuana are not excluded. Stowers v. State, 143 Ga. App. 859, 240 S.E.2d 227 (1977).
Effect of part of plant being stalk.
- When the state's expert testified that in the expert's opinion and estimate, approximately two-thirds of a marijuana plant was stalk, the inference was reasonable that the remaining one-third was chargeable marijuana under O.C.G.A. § 16-13-21(16). Lang v. State, 165 Ga. App. 576, 302 S.E.2d 683, cert. denied, 464 U.S. 937, 104 S. Ct. 346, 78 L. Ed. 2d 312 (1983).
Marijuana and THC.
- Georgia law distinguishes marijuana from THC (tetrahydrocannabinol) as O.C.G.A. § 16-13- 21(16) provides that marijuana means all parts of the plant of the genus Cannabis, whereas O.C.G.A. § 16-13-30(a) and (j) separately addresses any controlled substance and marijuana. C. W. v. Department of Human Services, 353 Ga. App. 360, 836 S.E.2d 836 (2019).
Conclusive, scientific tests required.
- Defendant's conviction for possession of marijuana had to fail because in the absence of conclusive, scientific tests, the possibility remained that the substance at issue was not marijuana. Chambers v. State, 260 Ga. App. 48, 579 S.E.2d 71 (2003).
There is no requirement that state prove which species of marijuana is seized. Stowers v. State, 143 Ga. App. 859, 240 S.E.2d 227 (1977).
Indictment need not describe what portion of marijuana plant defendant had in defendant's possession, as that was the very purpose of defining marijuana under former Code 1933, § 79A-802 (see now O.C.G.A. § 16-13-21). Allen v. State, 120 Ga. App. 533, 171 S.E.2d 380 (1969).
Odor of unburned marijuana.
- Trial court properly denied defendant's motion to suppress, as the trial court was authorized to believe the police officer's testimony that the officer was qualified to detect the odor of unburned marijuana based on the officer's training and experience, and, thus, that the officer recognized the smell of the 10 pounds of unburned marijuana defendant had in the trunk of defendant's car despite defense counsel's attempt to impeach the officer with the officer's testimony from a prior case that there was no difference between the smell of burnt and unburned marijuana; accordingly, the motion to suppress was properly denied and defendant's conviction for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., was affirmed. King v. State, 267 Ga. App. 546, 600 S.E.2d 647 (2004).
For discussion of scope of definition of marijuana.
- See Aycock v. State, 146 Ga. App. 489, 246 S.E.2d 489 (1978); Osborn v. State, 161 Ga. App. 132, 291 S.E.2d 22 (1982).
THC considered marijuana.
- Definition of "marijuana" under the Motor Vehicles Act, O.C.G.A. § 40-6-391 et seq., not only includes THC for purposes of determining whether one is driving under the influence, but requires that THC be considered "marijuana" in order for O.C.G.A. § 40-6-391(a)(6) to be actionable, since THC in the blood or urine is the method by which the presence of marijuana is detected for purposes of determining whether one is driving under the influence thereof. Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999).
High percentage of THC does not prevent treatment as marijuana.
- Any substance which is a resin, compound, manufacture, salt, derivative mixture, or preparation of cannabis plant shall be treated as marijuana, even though it may contain a high percentage of tetrahydrocannabinols (THC). For state to sustain charge of possession or distribution of THC under schedule I of O.C.G.A. § 16-13-25, it must prove that THC is not a compound, derivative, or preparation of the cannabis plant; that is, it must prove that the THC is synthetically derived. Aycock v. State, 146 Ga. App. 489, 246 S.E.2d 489 (1978); Osborn v. State, 161 Ga. App. 132, 291 S.E.2d 22 (1982).
State not required to prove THC content of marijuana.
- Despite the defendant's contrary claim, the state was not required to prove the tetrahydrocannabinol (THC) content of the plant material seized in a prosecution for trafficking in marijuana; further, THC was treated separately in the criminal code as a Schedule I drug under O.C.G.A. § 16-13-25(3)(P). Trujillo v. State, 286 Ga. App. 438, 649 S.E.2d 573 (2007).
OPINIONS OF THE ATTORNEY GENERAL
State Board of Pharmacy regulates dispensing drugs in hospitals.
- Dispensing drugs in hospitals by machine or otherwise is a matter which the legislature has left to the State Board of Pharmacy to regulate through its rule-making power. 1969 Op. Att'y Gen. No. 69-85.
Intern's or resident's authority to administer and dispense narcotics.- Intern or resident accepted for specialty or residency training in a hospital approved by Composite State Board of Medical Examiners (now Georgia Composite Medical Board) may prescribe, administer, and dispense narcotic drugs to the extent required by duties of the intern's position or by the intern's program of training for a period of two years and for such additional period as the board by application may determine. 1971 Op. Att'y Gen. No. 71-157.
Non-institutional pharmacists.- This definition of dispenser appears to contemplate that only those persons who are licensed to practice pharmacy outside of an institutional setting, i.e., non-institutional pharmacists, qualify as dispensers for purposes of the Georgia Prescription Drug Monitoring Program. 2016 Op. Att'y Gen. No. 16-7.
RESEARCH REFERENCES
Am. Jur. 2d.
- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 1 et seq., 18.
C.J.S.- 28 C.J.S., Drugs and Narcotics, §§ 6 et seq, 219.
U.L.A.- Uniform Controlled Substances Act (U.L.A.) § 101.
ALR.- Marijuana, psilocybin, peyote, or similar drugs of vegetable origin as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1164.
LSD, STP, MDA, or other chemically synthesized hallucinogenic or psychedelic substances as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1284.
Propriety of lesser-included-offense charge in state prosecution of narcotics defendant - Marijuana cases, 1 A.L.R.6th 549.
Propriety of lesser-included-offense charge in state prosecution of narcotics defendant - Cocaine cases, 2 A.L.R.6th 551.
Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or transaction in prosecution for possession or distribution of drugs, 109 A.L.R. Fed. 710.