Handling Drug-Related Charges In Georgia
This article will discuss the various drug charges that are commonly handled by our law firm in Georgia.
It will also explore the complexities of marijuana charges and the factors that determine whether a drug charge in Georgia is charged as a felony or misdemeanor.
In addition, the article will look at alternative sentences that are available for first-time offenders and potential defenses to drug charges in Atlanta.
Lastly, it will highlight the importance of having a criminal defense attorney for drug charge cases, even when planning to plead guilty.
What Are The Most Common Types Of Drug Charges George C. Creal, Jr. Law Firm Handles In Georgia?
Marijuana charges are the most common drug charges that our law firm handles in Georgia. Possession of marijuana is still illegal in this state, and charges related to it can be very complicated. For instance, in many states, hemp is not illegal if the THC content is less than 0.3% by volume of delta -9-tetrahydrocannabinol commonly referred to as “THC.” However, this situation becomes tricky due to the Hemp Farm Act, which excluded 0.3% THC hemp from the definition of marijuana. During that period in 2019, hemp flower and CBD oil produced from hemp were not illegal as long as the THC levels were under 0.3% by weight. However, after about a year of “legal hemp” lawmakers later changed the definition of hemp to say that unprocessed hemp was still illegal so police could search people’s cars if they smelled an odor of cannabis. This meant that unprocessed hemp flower was now illegal, while processed hemp like CBD oil was legal. Thus, there are many subtle nuances in the law between what is legal versus illegal.
What Determines Whether A Drug Charge In Georgia Will Be Charged As A Felony Or A Misdemeanor?
All drug charges other than simple possession of green leafy marijuana less than 28 grams and low THC oil (under 5% THC) are charged as felonies in Georgia. This means that possession of THC oil, THC vape cartridges, THC gummy bears and pot brownies are felony offenses. As a rule of thumb, any form of marijuana that is not “green and leafy” is going to be charged as a felony unless it’s excluded as hemp. In general, any oil or non-green leafy marijuana products above 5% Delta 9 THC are felony violations. Currently, Delta 8 THC is not illegal either in edible form or flower form, although there is legislation in works at the Georgia legislature to try to make it illegal.
Are There Alternative Sentences Available For First Time Offenders In Georgia?
There are several alternatives to a felony or misdemeanor conviction for drug charges in Georgia.
- Diversion Programs: A diversion program is a pre-conviction probation program where your case is held in abeyance or stayed while you complete the program. Then, you go through a program where you get a drug and alcohol evaluation, do some treatment if recommended, community service, take some court-prescribed classes, and pay an administrative fee.
If you successfully complete all those tasks in the required time period, your case will be dismissed, and your arrest will be restricted or expunged from your government criminal record. However, in Georgia, there technically is no such thing as a true expungement – that is why they legally titled restrictions. This means that your arrest record is restricted from view from civilian criminal record searches but visible in law enforcement and government criminal background checks. In other words, the arrest will be restricted from view for any non-law enforcement for governmental criminal background inquiries.
- Conditional Discharge: If you have a case that involves drugs or alcohol, that charge can be subject to the conditional discharge statute, which means if you pay your fines, complete your probation conditions, and do not violate your probation, then the case is dismissed.
- First Offender Act: The third way to avoid a felony conviction in a drug or alcohol-related case, except a DUI, is pleading under the first offender act. If you never been convicted of a crime or used a first offender plea in the past, you can plea your case under the first offender act for probation.
If you successfully complete probation, your case is discharged and acquitted. However, if you violate your probation at any time prior to your probation being over even on the last day in the last hour, your first offender status can be violated and can be sentenced to the maximum punishment allowed by law with no credit for the time you have already served on probation.
Are There Potential Defenses To Drug Charges In Atlanta?
There are many potential defenses to drug charges in Atlanta that defendants can utilize, including:
Illegal Police Contact:
The first defense depends on how the police made initial contact with you. There are three levels of police-citizen encounters: voluntary encounters, investigative detentions, and probable cause for arrest. The first defense would be, was the police contact illegal? Was there an illegal search and seizure?
The police can’t pull you over based on a guesswork or based on a hunch. Say for instance that you are pulled over for a traffic stop, but there is no actual traffic violation. The case can potentially be dismissed as it was based on an illegal search and seizure under the 4th Amendment to the United States Constitution and any evidence discovered after the stop occurred is fruit of the poisonous tree as it was illegally obtained and is inadmissible in court.
The second defense relates to how the drugs were found. If the police do not have a warrant to search for drugs, they have to have a recognized exception to the 4th Amendment prohibition on illegal searches and seizures such as actual consent. If they do not have actual consent, it could be an illegal search. The police can do what is called a Terry frisk when they are investigating or in the process of investigative detention.
However, a Terry frisk is only supposed to be for weapons. If they arrest you for a crime, then they can do a search incident to arrest or inventory search and go through your pockets and do an inventory of your person and your vehicle, and that is another way drugs will be found legally by the police.
Consent to Search:
The third defense would depend on if you gave consent to search. If they search your vehicle without your consent, then that’s a defense. Additionally, if you’re arrested without probable cause, and they do an inventory search and find drugs, that is another defense.
The last defense would be what is called equal access. If you are in a car with someone, and drugs are found, everyone in the car is typically arrested and charged with the drugs because anyone in the car can claim that the drugs were not theirs because other in the car had equal access to the drugs, and they could belong to someone else in the car. This defense is to called an equal access defense.
Do I Need An Atlanta Georgia Criminal Defense Attorney For My Drug Charge Case If I Plan To Plead Guilty?
First, It is important to have a lawyer in a drug case in Atlanta or any Georgia court because there may be facts in the case that could be used to get the case dismissed or reduced the charges to a lesser included offense or be used as leverage to get a conditional discharge or a diversion or first offender plea.
Second, if arrested for a drug charge, sometimes, defendants can do things to mitigate the sentence or punishment they get, such as getting a drug and alcohol evaluation and hiring experts to testify about some aspect of their case or background. Therefore, a lawyer can help mitigate punishment as well as find legal defenses.
If you do not have a lawyer, you can end up getting more jail time and punishment than you would otherwise. Additionally, if you do not have a lawyer, you may plead guilty to a crime that you could have been found not guilty of or had dismissed.
In conclusion, drug charges in Georgia can be very complicated and are often charged as felonies. However, there are alternatives to a felony or misdemeanor conviction, potential defenses to drug charges, and it is crucial to have a criminal defense attorney for drug charge cases, even if you plan to just plead guilty.