TITLE 16 CRIMES AND OFFENSES

Section 13. Controlled Substances, 16-13-1 through 16-13-114.

ARTICLE 2 REGULATION OF CONTROLLED SUBSTANCES

16-13-26. Schedule II.

The controlled substances listed in this Code section are included in Schedule II:

Any of the following substances, or salts thereof, except those narcotic drugs specifically exempted or listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding naloxone hydrochloride, but including the following:
  1. Raw opium;
  2. Opium extracts;
  3. Opium fluid extracts;
  4. Powdered opium;
  5. Granulated opium;
  6. Tincture of opium;
  7. Codeine;
  8. Ethylmorphine;
  9. Hydrocodone;
  10. Hydromorphone;
  11. Metopon;
  12. Morphine;
  13. Oripavine;
  14. Oxycodone;
  15. Oxymorphone;
  16. Thebaine;
2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in subparagraph (A) of this paragraph, except that these substances shall not include the isoquinoline alkaloids of opium;
3. Opium poppy and poppy straw;
4. Cocaine, coca leaves, any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of cocaine, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine;
Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation:
1. Alfentanil;
  (A.1) Alphaprodine;
2. Anileridine;
3. Bezitramide;
  (C.5) Carfentanil;
4. Dihydrocodeine;
5. Diphenoxylate;
6. Fentanyl;
7. Isomethadone;
  (G.5) Levo-alphacetylmethadol (some other names: levomethadyl acetate, LAAM);
8. Levomethorphan;
9. Levorphanol;
10. Methazocine;
11. Methadone;
12. Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-di-
  phenyl butane;
13. Moramide-Intermediate, 2-methyl-3-morpholino-1,1-di- phenyl-propane-carboxylic acid;
14. Pethidine (meperidine);
15. Pethidine-Intermediate-A,4-cyano-1-methyl-4-phenylpi-
  peridine;
16. Pethidine-Intermediate-B,ethyl-4-phenylpiperidine- 4-carboxylate;
17. Pethidine-Intermediate-C,1-methyl-4-phenylpiperidine- 4-carboxylic acid;
18. Phenazocine;
19. Piminodine;
20. Racemethorphan;
21. Racemorphan;
  (U.1) Remifentanil;
22. Sufentanil;
  (V.1) Tapentadol;
  
  (V.2) Thiafentanil;
23. 4-anilino-N-phenethyl-4-piperidine (ANPP);
Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances included as having a stimulant effect on the central nervous system:
1. Amphetamine, its salts, optical isomers, and salts of its optical isomers;
2. Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers;
3. Phenmetrazine and its salts;
4. Methylphenidate, including its salts, isomers, and salts of isomers;
5. Reserved;
6. Nabilone;
7. Lisdexamfetamine;
Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any of the following substances included as having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
1. Amobarbital;
  (A.5) Glutethimide;
2. Secobarbital;
3. Pentobarbital;
Dronabinol in oral solution labeled in compliance with U.S. Food and Drug Administration requirements.

(Code 1933, § 79A-807, enacted by Ga. L. 1974, p. 221, § 1; Ga. L. 1977, p. 625, § 7; Ga. L. 1978, p. 1668, § 7; Ga. L. 1979, p. 859, §§ 6, 7; Ga. L. 1980, p. 1746, § 5; Ga. L. 1982, p. 2403, §§ 12, 17, 17.1; Ga. L. 1985, p. 1219, § 3; Ga. L. 1987, p. 261, §§ 2-4; Ga. L. 1988, p. 420, § 1; Ga. L. 1989, p. 233, § 2; Ga. L. 1992, p. 1131, § 2; Ga. L. 1994, p. 169, § 4; Ga. L. 1997, p. 1311, § 1; Ga. L. 2000, p. 1317, § 1; Ga. L. 2007, p. 605, § 1/HB 286; Ga. L. 2008, p. 169, § 3/HB 1090; Ga. L. 2009, p. 126, § 1/HB 368; Ga. L. 2010, p. 860, § 2/SB 353; Ga. L. 2017, p. 14, §§ 5, 6/HB 231; Ga. L. 2017, p. 417, §§ 7-3, 7-4/SB 104; Ga. L. 2018, p. 314, § 5/HB 830.)

The 2017 amendments. The first 2017 amendment, effective April 17, 2017, added subparagraphs (2)(C.5) and (2)(V.2) and reserved subparagraph (3)(E), which formerly read: "Carfentanil". The second 2017 amendment, effective May 8, 2017, made identical changes.

The 2018 amendment, effective May 3, 2018, substituted a semicolon for a period at the end of paragraph (4) and added paragraph (5).

Administrative Rules and Regulations.

- Registration requirements under Georgia Controlled Substances Act, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia State Board of Pharmacy, Chapter 480-20. Requirements of a prescription drug order, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of Georgia State Board of Pharmacy, Chapter 480-22.

Law reviews.

- For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note on airport searches of drug couriers, see 33 Mercer L. Rev. 433 (1981).

JUDICIAL DECISIONS

Construed with O.C.G.A. §§ 16-13-30 and 16-13-31. - When the total weight of the substances seized from defendant was only 24.4 grams of cocaine, defendant argued that the only Georgia statute that proscribes possession of cocaine is O.C.G.A. § 16-13-31, prohibiting possession of 28 grams or more of cocaine. However, although O.C.G.A. § 16-13-31 deals with being in knowing, actual possession of 28 grams or more of cocaine or any mixture containing cocaine, O.C.G.A. § 16-13-26(1)(D) (prior to 1988 amendment inserting "cocaine") lists "Coca leaves, any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of cocaine, . . . ," which includes cocaine. Under O.C.G.A. § 16-13-30, the unlawful possession of any controlled substance, regardless of amount, constitutes an offense. Dixon v. State, 180 Ga. App. 222, 348 S.E.2d 742 (1986) (decided prior to 1988 amendment inserting "cocaine" at the beginning of paragraph (1)(D)).

Methylphenidate possessor's ex post facto argument rejected.

- Methylphenidate has been a Schedule II controlled substance since 1974. Accordingly, the contention that defendant was sentenced for an ex post facto crime has no merit where defendant's arrest warrant stated the date of possession of methylphenidate to have been on or about July 25, 1985. Carter v. State, 180 Ga. App. 173, 348 S.E.2d 715 (1986).

Simultaneous possession of different proscribed drugs may result in multiple punishments. Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908 (1977).

Multiple offenses arising from simultaneous possession of drugs of same category.

- Multiple offenses can be charged when drugs of same category (i.e., Schedule II) are taken from one person at same time and place. Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908 (1977).

Defendant may be prosecuted, convicted, and separately sentenced for the simultaneous possession of each of the controlled substances listed in O.C.G.A. § 16-13-26. Tabb v. State, 250 Ga. 317, 297 S.E.2d 227 (1982).

Controlled substance.

- Cocaine was a controlled substance pursuant to O.C.G.A. § 16-13-26(1)(D), and thus defendant could be convicted both for selling a controlled substance and distributing a controlled substance within 1,000 feet of a housing project after defendant sold cocaine to an undercover informant. Dixon v. State, 252 Ga. App. 385, 556 S.E.2d 480 (2001).

Sufficient evidence supported defendant's conviction of possession of cocaine under O.C.G.A. § 16-13-30(a) as: (1) the informant testified that defendant procured crack cocaine for the informant for $300.00; (2) detectives witnessed defendant enter and exit the bar where, according to the informant, defendant obtained the cocaine; and (3) the substance tested positive for cocaine, a controlled substance under O.C.G.A. § 16-13-26(1)(D); the credibility of the informant, which, according to the defendant, was allegedly impaired by the informant's prior criminal conduct, was an issue for the jury. Ross v. State, 275 Ga. App. 137, 619 S.E.2d 809 (2005).

Evidence sufficient to support conviction of sale of methamphetamine.

- Evidence that a defendant sold an undercover officer methamphetamine on two occasions, with one sale of more than 28 grams, and that the defendant participated in a later, larger drug deal, supported the defendant's convictions for trafficking in methamphetamine, O.C.G.A. § 16-13-31(e), and sale of methamphetamine under O.C.G.A. §§ 16-13-26(3)(B) and16-13-30(b). Culajay v. State, 309 Ga. App. 631, 710 S.E.2d 846 (2011).

Prior out-of-state drug convictions used to impose recidivist sentence.

- Defense counsel was not ineffective for failing to object to the trial court's use of prior felonies defendant committed in California to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(c) as the elements of Cal. Health & Safety Code §§ 11054(f) and 11350(a) (possession of cocaine) were sufficiently similar to those of O.C.G.A. §§ 16-13-26(1)(D) and16-13-30(c); and the elements of Cal. Penal. Code § 211 (robbery) were sufficiently similar to those of O.C.G.A. § 16-8-40. Williams v. State, 296 Ga. App. 270, 674 S.E.2d 115 (2009).

Remand for sentencing required.

- Because it was unclear which schedule, which Code section, and which sentencing range would apply to the substances the defendant pled guilty to selling, the defendant's sentences had to be vacated and the case remanded to the trial court for a hearing to determine on which schedule the controlled substances at issue belonged, and to impose a lawful and appropriate sentence. Williams v. State, 320 Ga. App. 243, 739 S.E.2d 727 (2013).

Cited in Nix v. State, 135 Ga. App. 672, 219 S.E.2d 6 (1975); Partain v. State, 139 Ga. App. 325, 228 S.E.2d 292 (1976); Cole v. State, 142 Ga. App. 461, 236 S.E.2d 125 (1977); Elrod v. State, 143 Ga. App. 331, 238 S.E.2d 291 (1977); Hughes v. State, 150 Ga. App. 90, 256 S.E.2d 634 (1979); Robinson v. State, 244 Ga. 15, 257 S.E.2d 523 (1979); Crosby v. State, 150 Ga. App. 804, 258 S.E.2d 593 (1979); Rick v. State, 152 Ga. App. 519, 263 S.E.2d 213 (1979); Farmer v. State, 154 Ga. App. 673, 270 S.E.2d 26 (1980); Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980); Wood v. State, 156 Ga. App. 810, 275 S.E.2d 694 (1980); Tant v. State, 247 Ga. 264, 275 S.E.2d 312 (1981); Little v. State, 157 Ga. App. 462, 278 S.E.2d 17 (1981); Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981); Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981); Head v. State, 160 Ga. App. 4, 285 S.E.2d 735 (1981); Reece v. State, 160 Ga. App. 59, 286 S.E.2d 41 (1981); Boyer v. State, 178 Ga. App. 372, 343 S.E.2d 146 (1986); Santone v. State, 187 Ga. App. 789, 371 S.E.2d 428 (1988); Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998); Davis v. State, 232 Ga. App. 882, 502 S.E.2d 779 (1998); Daniels v. State, 244 Ga. App. 522, 536 S.E.2d 206 (2000); Salgado v. State, 268 Ga. App. 18, 601 S.E.2d 417 (2004); Thomas v. State, 287 Ga. App. 500, 651 S.E.2d 801 (2007); Kohlmeier v. State, 289 Ga. App. 709, 658 S.E.2d 261 (2008); Womble v. State, 290 Ga. App. 768, 660 S.E.2d 848 (2008); Howard v. State, 291 Ga. App. 289, 661 S.E.2d 644 (2008); Thomas v. State, 291 Ga. App. 795, 662 S.E.2d 849 (2008); Kessinger v. State, 298 Ga. App. 479, 680 S.E.2d 546 (2009); Williamson v. State, 300 Ga. App. 538, 685 S.E.2d 784 (2009); Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324 (2011); State v. Harrell, 323 Ga. App. 56, 744 S.E.2d 867 (2013); Syms v. State, 331 Ga. App. 225, 770 S.E.2d 305 (2015); Carter v. Cornwell, 338 Ga. App. 662, 791 S.E.2d 447 (2016).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, § 10.

C.J.S.

- 28 C.J.S., Drugs and Narcotics, § 219.

U.L.A.

- Uniform Controlled Substances Act (U.L.A.) § 206.

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