TITLE 16 CRIMES AND OFFENSES

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

ARTICLE 2 REGULATION OF CONTROLLED SUBSTANCES

16-13-31.1. Trafficking in ecstasy; sentencing; variation.

Any person who sells, manufactures, delivers, brings into this state, or has possession of 28 grams or more of 3, 4-methylenedioxyamphetamine or 3,4-methylenedioxymetham-
phetamine, or any mixture containing 3,4-methylenedioxyam

phetamine or 3,4-methylenedioxymethamphetamine

as described in Schedule I, in violation of this article commits the felony offense of trafficking in 3,4-methylenedioxyam-

phetamine or 3, 4-methylenedioxymethamphetamine and, upon conviction thereof, shall be punished as follows:
1. If the quantity of such substance involved is 28 grams or more, but less than 200 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of three years but not more than 30 years and shall pay a fine of not less than $25,000.00 nor more than $250,000.00;
2. If the quantity of such substance involved is 200 grams or more, but less than 400 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of five years but not more than 30 years and shall pay a fine of not less than $50,000.00 nor more than $250,000.00; and
3. If the quantity of such substance involved is 400 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years but not more than 30 years and shall pay a fine of not less than $100,000.00 nor more than $250,000.00.
1. In the court's discretion, the judge may depart from the mandatory minimum sentence specified for a person who is convicted of a violation of this Code section as set forth in paragraph (2) of this subsection if the judge concludes that:
  1. The defendant was not a leader of the criminal conduct;
  2. The defendant did not possess or use a firearm, dangerous weapon, or hazardous object during the crime;
  3. The criminal conduct did not result in a death or serious bodily injury to a person other than to a person who is a party to the crime;
  4. The defendant has no prior felony conviction; and
  5. The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence.
2. The sentencing departure ranges pursuant to paragraph (1) of this subsection shall be as follows:
  1. Any person convicted of violating paragraph (1) of subsection (a) of this Code section, one year and six months to 30 years imprisonment and a fine of not less than $12,500.00 nor more than $250,000.00;
  2. Any person convicted of violating paragraph (2) of subsection (a) of this Code section, two years and six months to 30 years imprisonment and a fine of not less than $25,000.00 nor more than $250,000.00; and
  3. Any person convicted of violating paragraph (3) of subsection (a) of this Code section, five to 30 years imprisonment and a fine of not less than $50,000.00 nor more than $250,000.00;
3. If a judge reduces the mandatory minimum sentence pursuant to this subsection, the judge shall specify on the record the circumstances for the reduction and the interests served by such departure. Any such order shall be appealable by the State of Georgia pursuant to Code Section 5-7-1.
4. As used in this subsection, the term:
  1. "Dangerous weapon" shall have the same meaning as set forth in Code Section 16-11-121.
  2. "Firearm" shall have the same meaning as set forth in Code Section 16-11-127.1.
  3. "Hazardous object" shall have the same meaning as set forth in Code Section 20-2-751.
  4. "Leader" means a person who planned and organized others and acted as a guiding force in order to achieve a common goal.
The district attorney may move the sentencing court to impose a reduced or suspended sentence upon any person who is convicted of a violation of this Code section who provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may impose a reduced or suspended sentence if he or she finds that the defendant has rendered such substantial assistance.
In the court's discretion, the judge may depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a violation of this Code section when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.
Notwithstanding Code Section 16-13-2, any sentence imposed pursuant to subsection (b) of this Code section shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court or any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles; provided, however, that during the final year of incarceration, a defendant so sentenced shall be eligible to be considered for participation in a Department of Corrections administered transitional center or work release program.

(Code 1981, §16-13-31.1, enacted by Ga. L. 2004, p. 1070, § 1; Ga. L. 2007, p. 47, § 16/SB 103; Ga. L. 2013, p. 222, § 5/HB 349; Ga. L. 2014, p. 432, § 2-9/HB 826; Ga. L. 2014, p. 780, § 2-3/SB 364; Ga. L. 2015, p. 5, § 16/HB 90; Ga. L. 2017, p. 774, § 16/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation throughout the introductory paragraph of subsection (a).

Editor's notes.

- Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Ga. L. 2014, p. 780, § 5-1/SB 364, not codified by the General Assembly, provides, in part, that this Act shall apply to any sentence imposed on or after July 1, 2013.

Law reviews.

- For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013).

JUDICIAL DECISIONS

Sufficient evidence to support conviction for trafficking MDMA.

- With regard to a defendant's convictions for possession of marijuana with the intent to distribute, trafficking in 4-Methylenedioxymethamphetamine, commonly known as ecstasy, trafficking in cocaine, and possession of a firearm during the commission of a crime, there was sufficient evidence to support the defendant's conviction for possession of the contraband, which was found in a backpack, based on the strong odor of marijuana coming from the vehicle in which the defendant was a passenger, the defendant's suspicious and nervous behavior, the defendant's joint living arrangement with two other defendants, the defendant's possession of ammunition for another one of the defendant's weapons, and the fact that the defendant was, at times, within arm's reach of the backpack, which showed an intent and power to exercise joint control over the backpack and the drugs found therein; likewise, there was sufficient evidence to support the trafficking charges based on the amounts of the contraband found; and, there was sufficient evidence to support the firearm possession charge since the defendant was found in possession of a magazine that fit the gun located within arm's reach. However, considering that there were four people in the vehicle, the court found that the state's evidence was insufficient to exclude the reasonable hypothesis that the marijuana was intended for personal use therefore, the conviction for the intent to distribute marijuana was reduced to possession. Vines v. State, 296 Ga. App. 543, 675 S.E.2d 260 (2009).

Sufficient evidence supported the defendant's conviction for trafficking in 3,4 methylenedioxymethamphetamine (MDMA, or "ecstasy") as the jury was authorized to find the defendant knew that a codefendant had possession of marijuana and ecstasy, and the evidence showed that the defendant allowed the codefendant to place the drugs in the trunk of the defendant's vehicle and knowingly transported the drugs in the vehicle. Jackson v. State, 314 Ga. App. 272, 724 S.E.2d 9 (2012).

Imposition of separate trafficking sentences proper for methamphetamine and ecstasy.

- Trial court did not err under O.C.G.A. §§ 16-1-6(2) and16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31, and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31.1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703, 719 S.E.2d 563 (2011).

Reporting of convictions.

- Convictions for violations of O.C.G.A. §§ 40 6 391(2), (4), (6), and 40 5 151 should be reported by the superior court clerk to Department of Driver Services (DDS) and violations of O.C.G.A. §§ 16 13 30(b), 16 13 31, and 16 13 31.1 should be reported to DDS only upon the clerk's determination that the conviction meets the mandate of O.C.G.A. § 40 5 54(a)(2). 2017 Op. Att'y Gen. No. 17-4.