Drug & Marijuana Charge Defenses
In Georgia, laws prohibiting the possession, sale, or intent to distribute marijuana and certain other drugs are codified as the Georgia Controlled Substances Act. The law categorizes drugs into five “schedules”. Schedule I drugs have no currently accepted medical use and include heroin, LSD, and MDMA (ecstacy). OCGA 16-13-25. Schedule II includes drugs which have a high potential for abuse and dependence, but may have some recognized medical use under severe restriction, such as cocaine, methamphetamine, oxycodone (Percocet) and hydrocodone (Vicodin, Lortab). OCGA 16-13-26. Schedules III, IV and V, include a wide range of drugs with a lower potential abuse and may be possessed when lawfully prescribed, such as Ketamine, Alprazolam (Xanax), Clonazepam, Diazepam (Valium) and Carisoprodol (Soma) OCGA § 16-13-27, 16-13-28, 16-13-29. Any amount of marijuana (even residue in a pipe) is unlawful to possess in Georgia.
So what is possession? The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. For instance, if cocaine is found in your pants pocket...that’s evidence of actual possession. Or, if a person does not physically possess it, but knowingly has both the power and the intention to exercise authority or control over the drugs then he has constructive possession of it.
The penalties for drug convictions in Georgia can be severe:
- Possession of one ounce or less ofmarijuana: misdemeanor (up to 12 months in jail)
- Possession of greater than one ounce of marijuana: felony (up to ten years in state prison)
- Sale or possession with intent to distribute of marijuana: felony (up to ten years in prison)
- Trafficking (possession of 10 pounds or more of marijuana): felony (from 5 to 30 years in prison)
- Possession of cocaine, methamphetamine, hydrocodone, oxycodone: felony (from 2 to 30 years in prison)
- Sale or intent to distribute any amount of cocaine, methamphetamine, hydrocodone, oxycodone: felony (5 years to life in prison)
- Trafficking (28 grams or more of cocaine or methamphetamine): felony (10 to 30 years in prison)
- Your property (money, vehicles) can be seized by the government if connected to the unlawful possession or sale of drugs!
Our philosophy: Seek to have the evidence suppressed or excluded by finding where police violated the defendant’s constitutional rights in the way his person or property was searched, or in how the contraband was seized. Evidence of marijuana or other drugs can be thrown-out if it was discovered or seized from a person, vehicle, home, hotel room, purse, or cell phone in a way that violated the defendant’s Fourth Amendment Constitutional right to be free from unlawful search and seizure. No evidence = NOT GUILTY.
But even if there is no basis which requires that the evidence be suppressed, we look for any possible factual or legal defenses to challenge the criminal charges:
- Did others have equal access to drugs found in the car or residence?
- Is the evidence of possession mere spatial proximity?
- Is there a legal presumption that contraband belonged to someone else?
- Were the drugs found in someone else’s clothing, car, or apartment?
- Was the defendant merely present in the vehicle or room when drugs found?
- Can the State prove that seized material is actually contraband?
- Can State prove you were the person in video?
- Can State prove you had knowledge that drug present or intent to possess or distribute?
- Does the defendant have a lawful prescription?
- Are drug treatment options a viable alternative?
Our Goal: Our priority in drug cases never changes – get the evidence excluded, get the case dismissed, and keep our clients out of jail.
Strong History of Success
State v. BRD, Superior Court of Cobb County case 11-9-0294: Driver sitting in car at gas pump when officers ordered BRD out of the car. Police found a small amount of cocaine in BRD’s wallet. After the filing of a motion to suppress and the cross-examination of the officer in court, the judge threw-out the evidence because police violated BRD’s rights. No evidence = NOT GUILTY. (May 2011)
State v. JTH, Superior Court of Cobb County case 11-9-1925: Driver was in a parking lot behind a motel when police officers ordered JTH out of the van. Police searched a backpack in the van and discovered methamphetamine packaged for sale. After questioning the police officer in a suppression hearing, the judge agreed that the search of the backpack was unlawful. The evidence was thrown-out and the charges dismissed. No evidence = NOT GUILTY. (December 2011)
State v. LHB, State Court of Cobb County case 12M1672: Driver was pulled over when police observed the vehicle pulling out of a church parking lot after midnight. We filed a motion to suppress and argued that the traffic stop was unlawful because there was no traffic violation and no probable cause to pull LHB over. The prosecutor agreed that the traffic stop was unlawful and dismissed the case. No evidence = NOT GUILTY. (2012)
State v. AT, State Court of Cobb County case 12M2106: Passenger was arrested for possessing marijuana police found inside a van parked in passenger’s driveway. We filed a motion to dismiss and argued that Cobb County Police lacked probable cause to arrest where AT was merely a passenger in a vehicle owned and driven by a third party. The judge agreed that passenger’s mere proximity to marijuana in someone else’s car was insufficient and dismissed the charges. No evidence = NOT GUILTY. (2012)