TITLE 16 CRIMES AND OFFENSES

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

ARTICLE 2 REGULATION OF CONTROLLED SUBSTANCES

16-13-30.3. Possession of substances containing ephedrine or pseudoephedrine; restrictions on sales of products containing those ingredients.

As used in this Code section, the term:
1. "Ephedrine" or "pseudoephedrine" means any drug product containing ephedrine or pseudoephedrine or any of their salts, isomers, or salts of isomers, alone or in a mixture.
2. "Georgia Meth Watch" means the program entitled Georgia Meth Watch or a similar program which has been promulgated, approved, and distributed by the Georgia Council on Substance Abuse.
3. "Pharmacy" has the same meaning as in Code Section 26-4-5.
4. "Real-time electronic logging system" means an electronic system approved by the Georgia Bureau of Investigation which is operated in real time and which can track required information and generate a stop sale alert to notify a pharmacy that a purchase of ephedrine or pseudoephedrine which exceeds the quantity limits set forth in this Code section is being attempted. Such system shall:
  1. Contain an override function that will not only allow a pharmacy to complete a sale in violation of this Code section when the person making the sale is in reasonable fear of imminent bodily harm if he or she does not complete the sale but also will track any override sales made;
  2. Be accessible to the state, pharmacies, and law enforcement agencies, without a charge or fee, including a transaction fee; and
  3. Have real-time interstate communicability with similar systems in other states.
5. "Required information" means the full name and address of the purchaser; the type of government issued photographic identification presented, including the issuer and identification number; a description of the nonprescription product purchased which contains ephedrine or pseudoephedrine, including the number of grams of pseudoephedrine in the product; and the date and time of the purchase.
1. It shall be unlawful for any person, other than a person or entity described in paragraph (22), (28), (29), (30), (33), or (41) of Code Section 26-4-5, to possess any product that contains ephedrine or pseudoephedrine in an amount which exceeds 300 pills, tablets, gelcaps, capsules, or other individual units or more than 9 grams of ephedrine or pseudoephedrine or a combination of these substances, whichever is smaller.
2. It shall be unlawful for any person to possess any product containing ephedrine or pseudoephedrine with the intent to manufacture amphetamine or methamphetamine.
3. Any person who violates the provisions of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.
1. Products whose sole active ingredient is pseudoephedrine may be offered for retail sale only if sold in blister packaging. Nonprescription products whose sole active ingredient is ephedrine or pseudoephedrine shall only be sold in a pharmacy in a manner which complies with State Board of Pharmacy rules established pursuant to Code Section 16-13-29.2.
2. No person shall distribute or purchase any nonprescription product containing more than 3.6 grams of ephedrine or pseudoephedrine per day in dosage form or more than 9 grams of ephedrine or pseudoephedrine per 30 day period in dosage form of any product. The limits set forth in this paragraph shall apply to the total amount of ephedrine or pseudoephedrine contained in the product and not the overall weight of such product.
3. The pharmacy shall maintain a record of required information for each sale of a nonprescription product which contains ephedrine or pseudoephedrine for a period of two years from the date of each transaction. Except as to law enforcement agencies in this state which shall be provided immediate access by a pharmacy to all written and electronic logs or records upon request, the records maintained by a pharmacy pursuant to this Code section shall not be disclosed. Pharmacies may destroy the required information collected pursuant to this subsection after two years from the date of the transaction.
4. 1. On and after January 1, 2017, pharmacies shall, before completing a sale of a nonprescription product which contains ephedrine or pseudoephedrine, electronically track all such sales and submit the required information to a real-time electronic logging system. A pharmacy shall not complete the sale of a nonprescription product which contains ephedrine or pseudoephedrine if the real-time electronic logging system generates a stop sale alert except as provided in subparagraph (a)(4)(A) of this Code section.
  2. If a pharmacy selling a nonprescription product which contains ephedrine or pseudoephedrine experiences mechanical or electronic failure of the real-time electronic logging system and is unable to comply with the requirements of this paragraph, the pharmacy shall maintain a written log or an alternative electronic recording mechanism until such time as the pharmacy is able to comply with the electronic logging requirement.
  3. Absent negligence, wantonness, recklessness, or deliberate misconduct, any pharmacy utilizing the real-time electronic logging system in accordance with this paragraph shall not be civilly liable as a result of any act or omission in carrying out the duties required by this paragraph and shall be immune from liability to any third party unless the pharmacy has violated any provision of this paragraph in relation to a claim brought for such violation.
  4. The Georgia Bureau of Investigation shall provide real-time access to records on such logging system through an online portal to law enforcement agencies in this state.
5. It shall be unlawful for a pharmacy to purchase any product containing ephedrine or pseudoephedrine from any person or entity other than a manufacturer or a wholesale distributor licensed by the State Board of Pharmacy.
6. This subsection shall preempt all local ordinances or regulations governing the retail sale of products containing ephedrine or pseudoephedrine except such local ordinances or regulations that existed on or before December 31, 2004. Effective January 1, 2006, this subsection shall preempt all local ordinances.
7. 1. Any person convicted of a violation of paragraph (1), (2), (3), or (4) of this subsection shall be guilty of a misdemeanor which, upon the first conviction, shall be punished by a fine of not more than $500.00 and, upon the second or subsequent conviction, shall be punished by not more than six months' imprisonment or a fine of not more than $1,000.00, or both.
  2. Any person convicted of a violation of paragraph (5) of this subsection shall, upon the first conviction, be guilty of a misdemeanor and, upon the second or subsequent conviction, be guilty of a misdemeanor of a high and aggravated nature.
  3. It shall be a defense to a prosecution pursuant to this paragraph by law enforcement of a pharmacy for violation of paragraph (1), (2), (3), (4), or (5) of this subsection that, at the time of the alleged violation, all of the employees of the pharmacy had completed training complying with standards established under Georgia Meth Watch as such standards existed on June 30, 2016, and the pharmacy was in compliance with procedures established by Georgia Meth Watch as such standards existed on June 30, 2016; provided, however, that this subparagraph shall not apply to the State Board of Pharmacy or prevent it from taking disciplinary action for a violation of this subsection.
This Code section shall not apply to products that the State Board of Pharmacy, upon application of a manufacturer, exempts by rule from this Code section because the product has been formulated in such a way as to prevent effectively the conversion of the active ingredient into methamphetamine or its salts or precursors.
Except as authorized by this article, it is unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute any product containing any amounts of ephedrine or pseudoephedrine which have been altered from their original condition so as to be powdered, liquefied, or crushed. This subsection shall not apply to any of the substances identified within this subsection which are possessed or altered for a legitimate medical purpose. Any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.

(Code 1981, §16-13-30.3, enacted by Ga. L. 2003, p. 177, § 3; Ga. L. 2005, p. 194, § 1/HB 216; Ga. L. 2006, p. 72, § 16/SB 465; Ga. L. 2007, p. 47, § 16/SB 103; Ga. L. 2016, p. 273, § 1/HB 362.)

The 2016 amendment, effective July 1, 2016, rewrote this Code section.

Administrative Rules and Regulations.

- Listed chemical wholesale distributor, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Ch. 480-7A.

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U.L. Rev. 97 (2016).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 16-13-30.3(b)(1) was constitutional as it created classifications between those possessing 300 or less individual units of the substances listed, and those possessing more than 300 units; the classifications had a rational basis in combating the illicit drug trade as the Georgia legislature determined that possession of 300 or less individual units served a legitimate health concern, while possession of more than 300 individual units did not. Rochefort v. State, 279 Ga. 738, 620 S.E.2d 803 (2005).

O.C.G.A. § 16-13-30.3(b)(1) was not unconstitutionally vague as "ephedrine," "pseudoephedrine," and "phenylpro- panolamine" were so similar to one another that each was considered a functional equivalent of the others. Rochefort v. State, 279 Ga. 738, 620 S.E.2d 803 (2005).

Evidence sufficient for conviction.

- Evidence supported defendant's conviction for possession of more than 300 tablets of ephedrine as: (1) the equal access rule did not apply as defendant made inculpatory admissions that authorized a finding that defendant possessed the substances; (2) the random testing of two of the 2,329 tablets supported the conviction as an expert examined the remainder of the tablets, stated that they had the same logo and appearance, and opined that all of the tablets contained pseudoephedrine; and (3) there was not a fatal variance, even though the accusation charged defendant with possession of more than 300 tablets of ephedrine, but the proof showed that the tablets contained pseudoephedrine, as for purposes of O.C.G.A. § 16-13-30.3, "ephedrine" and "pseudoephedrine" were synonymous. Rochefort v. State, 279 Ga. 738, 620 S.E.2d 803 (2005).

Convictions of manufacture, distribution, and possession of methamphetamine with the intent to distribute under O.C.G.A. § 16-13-30(b), possession of ephedrine/pseudoephedrine under O.C.G.A. § 16-13-30.3(b)(1), and possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106(b)(4) were supported by the evidence. A panel van belonging to the defendant had been modified as a methamphetamine lab, was located on the defendant's property, and was powered by an electrical cord running from the defendant's trailer; everything necessary to support the production of methamphetamine was present in the vicinity of the vehicle; the defendant's name and that of the defendant's spouse had been scrawled on an interior panel of the vehicle; the defendant offered to provide any methamphetamine that a house guest wanted; uncured methamphetamine and enough ephedrine was present at the scene to make 30 to 33 grams of methamphetamine; and the defendant admitted to giving methamphetamine to others and to owning the sawed-off shotgun recovered from the panel van. Boone v. State, 293 Ga. App. 654, 667 S.E.2d 880 (2008).

Lesser included offense to trafficking.

- Crimes set forth in O.C.G.A. §§ 16-13-30.3(b)(2) and16-13-32.2, with regard to possessing objects or materials of any kind for the purpose of manufacturing or preparing a controlled substance, are lesser included offenses of the crime of trafficking by manufacture of methamphetamine under O.C.G.A. § 16-13-31(f). Franks v. State, 325 Ga. App. 488, 758 S.E.2d 604 (2013).

Because the possession of pseudoephedrine and possession of a drug-related object required proof of elements not required for the crime of trafficking, those crimes were not lesser included offenses of the crime of trafficking in methamphetamine as indicted, and the trial court did not err in denying the second defendant's requested charges on lesser included offenses. Long v. State, 325 Ga. App. 488, 758 S.E.2d 604 (2013).

Failure to instruct jury on lesser included offenses reversible error.

- Defendant's conviction for attempted trafficking by manufacturing methamphetamine was reversed because the evidence was not overwhelming as to the charge of trafficking, thus, it could not be said that it was harmless error for the trial court to refuse to instruct the jury on the lesser included offenses requested by the defendant. Franks v. State, 325 Ga. App. 488, 758 S.E.2d 604 (2013).

Cited in Smith v. State, 289 Ga. App. 236, 656 S.E.2d 574 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators.

- O.C.G.A. § 16-13-30.3 is an offense for which those charged with a violation are to be fingerprinted. 2006 Op. Att'y Gen. No. 2006-2.

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