Transactions in Drug Related Objects; Civil Forfeiture; Penalties

  1. Law
  2. Georgia Code
  3. Crimes and Offenses
  4. Controlled Substances
  5. Regulation of Controlled Substances
  6. Schedules, Offenses, and Penalties
  7. Transactions in Drug Related Objects; Civil Forfeiture; Penalties

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  1. As used in this Code section, the term:
    1. "Drug related object" means any instrument, device, or object which is designed or marketed as useful primarily for one or more of the following purposes:
      1. To inject, ingest, inhale, or otherwise introduce marijuana or a controlled substance into the human body;
      2. To enhance the effect of marijuana or a controlled substance on the human body;
      3. To test the strength, effectiveness, or purity of marijuana or a controlled substance;
      4. To process or prepare marijuana or a controlled substance for introduction into the human body;
      5. To conceal any quantity of marijuana or a controlled substance; or
      6. To contain or hold marijuana or a controlled substance while it is being introduced into the human body.
    2. "Knowing" means either actual or constructive knowledge of the drug related nature of the object; and a person or corporation has constructive knowledge of the drug related nature of the object if he or it has knowledge of facts which would put a reasonable and prudent person on notice of the drug related nature of the object.
  2. Except as otherwise authorized in subsection (c) of this Code section, it shall be unlawful for any person or corporation, knowing the drug related nature of the object, to sell, lend, rent, lease, give, exchange, or otherwise distribute to any person any drug related object. It shall also be unlawful for any person or corporation, knowing the drug related nature of the object, to display for sale, or possess with the intent to distribute any drug related object. Unless stated within the body of the advertisement or notice that the object that is advertised or about which information is disseminated is not available for distribution of any sort in this state, it shall be unlawful for any person or corporation, knowing the drug related nature of the object, to distribute or disseminate in any manner to any person any advertisement of any kind or notice of any kind which gives information, directly or indirectly, on where, how, from whom, or by what means any drug related object may be obtained or made.
    1. It shall be unlawful for any person or corporation, other than a licensed pharmacist, a pharmacy intern or pharmacy extern as defined in Code Section 26-4-5, a practitioner licensed to dispense dangerous drugs, or a person employed by or acting as an agent of a registered syringe services program, to sell, lend, rent, lease, give, exchange, or otherwise distribute to any person a hypodermic syringe or needle designed or marketed primarily for human use. It shall be an affirmative defense that the hypodermic syringe or needle was marketed for a legitimate medical purpose.
    2. A person employed by or acting as an agent of a registered syringe services program shall be immune from civil and criminal liability arising from the possession, distribution, or exchange of hypodermic syringes or needles and related supplies as part of such syringe services program.
    3. The Department of Public Health shall be authorized to promulgate rules and regulations for the purpose of supervising the activities of syringe services programs, including provisions for the registration of such programs.
    4. As used in this subsection, the term "syringe services program" means an organization which provides substance abuse and harm reduction counseling, education, and referral services for substance abuse disorder treatment; training and provision of naloxone to reverse opioid overdoses; screening for HIV, viral hepatitis, sexually transmitted diseases, and tuberculosis; referrals and linkage to HIV, viral hepatitis, sexually transmitted diseases, and tuberculosis prevention, treatment, and care services; safer injection supplies; and evidence based interventions to reduce negative consequences of drug related behaviors.
  4. For a first offense, any person or corporation which violates any provision of this Code section shall be guilty of a misdemeanor. For a second offense, the defendant shall be guilty of a misdemeanor of a high and aggravated nature. For a third or subsequent offense, the defendant shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than five years and shall be fined not more than $5,000.00.
  5. All instruments, devices, and objects which are distributed or possessed in violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them and shall be forfeited according to the procedure set forth in Chapter 16 of Title 9. As used in this subsection, the term "proceeds" shall have the same meaning as set forth in Code Section 9-16-2.

(Code 1933, § 79A-811.1, enacted by Ga. L. 1978, p. 2237, § 1; Ga. L. 1980, p. 1288, § 1; Ga. L. 1996, p. 748, § 13; Ga. L. 2004, p. 488, § 2; Ga. L. 2015, p. 693, § 2-19/HB 233; Ga. L. 2019, p. 40, § 1/HB 217.)

The 2019 amendment, effective July 1, 2019, substituted "Except as otherwise authorized in subsection (c) of this Code section, it" for "It" at the beginning of subsection (b); designated the existing provisions of subsection (c) as paragraph (c)(1); in paragraph (c)(1), in the first sentence, deleted "or" following "Code Section 26-4-5" and inserted "or a person employed by or acting as an agent of a registered syringe services program," in the middle; and added paragraphs (c)(2) through (c)(4).

Editor's notes.

- Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 27 (2019).

JUDICIAL DECISIONS

Constitutionality.

- See High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982).

Definition of "drug related objects" in O.C.G.A. § 16-13-32 provides adequate notice of the persons covered and the conduct proscribed and therefore does not render the section void for vagueness. High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982).

Explicit standards necessary.

- If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Section not repealed by implication.

- Despite the almost identical caption and punishment provisions, the enactment of O.C.G.A. § 16-13-32.1 was intended to be in addition to, rather than a substitute for, the existing statute (O.C.G.A. § 16-13-32); thus, O.C.G.A. § 16-13-32.1 did not repeal O.C.G.A. § 16-13-32 by implication. State v. Gill, 173 Ga. App. 848, 328 S.E.2d 561 (1985).

Notice of proceeding to condemn currency.

- Because O.C.G.A. § 16-13-32 does not require the notice of proceedings by publication to specify the time within which an answer must be filed, and the party reading the notice is charged with knowledge of the legal requirements, where the plaintiff did nothing to confirm time had expired or rectify the absence of a response, plaintiff could not show prejudice other than what was self-inflicted through lack of diligence, and plaintiff's out-of-time answer was untimely. Ragland v. State, 235 Ga. App. 830, 510 S.E.2d 587 (1998).

Digital scales.

- Given a police officer's testimony that the drugs found at the scene came from a bag which the defendant removed from a pants pocket, the jury was authorized to find that the defendant trafficked in cocaine, possessed cocaine with intent to distribute, and possessed less than one ounce of marijuana; moreover, the amount of cocaine at issue, as well as the defendant's possession of digital scales typically used to weigh drugs for distribution, permitted the jury to discount the defendant's own testimony and find an intention to distribute the drugs. Lipsey v. State, 287 Ga. App. 835, 652 S.E.2d 870 (2007).

O.C.G.A. § 16-13-32 does not exclude certain seeds, fiber, and oil from a marijuana plant as contraband. 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).

Cited in High Ol' Times, Inc. v. Busbee, 449 F. Supp. 364 (N.D. Ga. 1978); High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978); High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 26, 40 et seq.

C.J.S.

- 28 C.J.S., Drugs and Narcotics, §§ 274 et seq., 285. 28A C.J.S., Drugs and Narcotics, § 342 et seq.

ALR.

- Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Prosecutions based upon alleged illegal possession of instruments to be used in violation of narcotics laws, 92 A.L.R.3d 47.

Forfeitability of property held in marital estate under Uniform Controlled Substances Act or similar statute, 84 A.L.R.4th 620.

Construction and application of state drug paraphernalia acts, 23 A.L.R.6th 307.

What constitutes establishment of prima facie case for forfeiture of real property traceable to proceeds from sale of controlled substances under § 511(a)(6) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCA § 881(a)(6)), 146 A.L.R. Fed. 597.


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