O.C.G.A.
O.C.G.A.

O.C.G.A. § 16-13-30.2 (2019)

Manufacture, distribution, or possession with intent to distribute of imitation controlled substances; civil forfeiture

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Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.1) of Code Section 16-13-21 is guilty of a misdemeanor of a high and aggravated nature.

(b) The provisions of this Code section are cumulative and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party.

(c) No civil or criminal liability shall be imposed by virtue of this Code section on any person registered under this article who manufactures, distributes, or possesses an imitation controlled substance for use by a practitioner, as defined in paragraph (23) of Code Section 16-13-21, in the course of lawful professional practice or research.

(d) All materials which are manufactured, 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.

History

Code 1981, § 16-13-30.2, enacted by Ga. L. 1988, p. 1065, § 2; Ga. L. 2015, p. 693, § 2-17/HB 233.

Annotations

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 note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U.L. Rev. 519 (2005).

JUDICIAL DECISIONS

Applicability. - Defendant was erroneously convicted of felony selling a non-controlled substance under O.C.G.A. § 16-13-30.1(a)(1)(A) where the subject conduct also violated O.C.G.A. § 16-13-30.2, which makes it a misdemeanor to possess or distribute an "imitation controlled substance"; the state improperly prosecuted defendant for violating the statute with the greater penalty rather than the one with the lesser penalty. Brown v. State, 276 Ga. 606, 581 S.E.2d 35 (2003).

This section not lesser included offense of Code Section 16-13-30.1. - O.C.G.A. § 16-13-30.2 cannot be considered a lesser included crime of O.C.G.A. § 16-30-30.1 under the required evidence test because the plain language of § 16-13-30.2 requires proof of a fact not required for a conviction under § 16-13-30.1. State v. Burgess, 263 Ga. 143, 429 S.E.2d 252 (1993).

Conduct of selling is subsumed in the expressly prohibited activity of distributing and therefore constitutes a violation of O.C.G.A. § 16-13-30.2. Dorsey v. State, 212 Ga. App. 479, 441 S.E.2d 891 (1994).

Undercover deputies' possession of wax pieces of fake cocaine to identify and arrest drug buyers did not violate prohibition against possessing imitation controlled substance with intent to distribute. Guzman v. State, 206 Ga. App. 170, 424 S.E.2d 849 (1992).

Evidence insufficient for conviction. - When a federal chemist testified that, although the chemist thought the green leafy material was marijuana, the chemist did not test the substance, so the chemist could not testify beyond a reasonable doubt that the substance was marijuana, and since no scientifically conclusive evidence was presented at all, a conviction for possession of marijuana with intent to distribute could not stand. Adkinson v. State, 236 Ga. App. 270, 511 S.E.2d 527 (1999).

Rule of lenity did not apply. - 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 an imitation of 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 substance appeared as a "dosage unit" based on color, shape, size, or markings or was 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 to conviction for imitation controlled substances. - 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 the substance 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).

RESEARCH REFERENCES

ALR. - Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.

Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.

Notes of Decisions
Cited in 10 cases, 1992–2013 · leading case: Brown v. State, 581 S.E.2d 35 (Ga. 2003).
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Brown v. State, 581 S.E.2d 35 (Ga. 2003). · cites it 10× “This appeal requires us to consider whether OCGA § 16-13-30.2 punishes as a misdemeanor the same conduct that resulted in Kandy Brown’s felony conviction under OCGA § 16-13-30.”
Dorsey v. State, 441 S.E.2d 891 (Ga. Ct. App. 1994). · cites it 14× “Dorsey contends that the trial court erred in denying his motions for a directed verdict, for new trial, and in arrest of judgment in regard to the imitation crack cocaine charge because the “sale” of an imitation controlled substance is not a violation of OCGA § 16-13-30.2 (a)…”
State v. Burgess, 429 S.E.2d 252 (Ga. 1993). · cites it 4× “766 ( 420 SE2d 590 ) (1992), holding that the trial court erred in failing to grant the appellee’s written request to charge the jury with OCGA § 16-13-30.2 3 (“Section 30.2”), which provides that distribution of “imitation controlled substances” is a misdemeanor.”
Chandler v. State, 668 S.E.2d 510 (Ga. Ct. App. 2008). · cites it 8× “Chandler contends that his conduct was also a violation of OCGA § 16-13-30.2, which is a misdemeanor.”
Diaz v. State, 676 S.E.2d 252 (Ga. Ct. App. 2009). · cites it 12× “A08A2199, Juan Diaz appeals claiming that the rule of lenity required that he be punished for the misdemeanor offense of distributing an imitation controlled substance, OCGA § 16-13-30.2, rather than for the felony counts of which he was convicted.”
Guzman v. State, 424 S.E.2d 849 (Ga. Ct. App. 1992). · cites it 2× “However, the deputies did not engage in conduct prohibited by OCGA § 16-13-30.2 (a) because they possessed the wax pieces for the purpose of identifying and arresting drug buyers, not with the intention to distribute the substance as cocaine.”
Ramsey v. State, 462 S.E.2d 806 (Ga. Ct. App. 1995). · cites it 2× “The trial court did not err by refusing to charge that OCGA § 16-13-30.2 is a lesser included offense of OCGA § 16-13-30.”
Burgess v. State, 420 S.E.2d 590 (Ga. Ct. App. 1992). · cites it 54× “In his first enumeration of error, Burgess contends that the trial court erred in failing to give the jury his written request to charge on OCGA § 16-13-30.2 because that offense is a lesser included offense of OCGA § 16-13-30.”
In the Interest of M. A. I., 737 S.E.2d 585 (Ga. Ct. App. 2013). · cites it 2× “See OCGA § 16-13-30.2 (a) (“Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.”
In the Interest Of: M. A. I., a Child, No. A12A1993 (Ga. Ct. App. Jan. 22, 2013). · cites it 2× “’s failure to complete all conditions of 1 See OCGA § 16-13-30.2 (a) (“Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined as paragraph (12.”
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