O.C.G.A. § 16-13-32.2 (2019)

Annotations

Law reviews. For note on the Model Drug Paraphernalia Act and the Head Shop Industry, see 16 Ga. L. Rev. 137 (1981).

JUDICIAL DECISIONS Section is void for vagueness. - As there are no standards to guide those charged with enforcing the law, and there exists the very real possibility of discriminatory and arbitrary enforcement, O.C.G.A. § 16-13-32.2 is accordingly found to be void for vagueness, and it is declared unconstitutional. Windfaire, Inc. v. Busbee, 523 F. Supp. 868, 1981 U.S. Dist. LEXIS 15060 (N.D. Ga. 1981). No fatal variance between indictment and evidence at trial. - With respect to a charge against the defendant of possession of a drug-related object, in violation of O.C.G.A. § 16-13-32.2, there was no fatal variance between the charge in the indictment and the evidence offered at trial, although the indictment referred to a crack cocaine smoking device and the evidence at trial showed that the defendant possessed a filter for such device, which was a mere component of such a device; the defendant was sufficiently apprised of the charge and there was no danger of further prosecution. Holloway v. State, 297 Ga. App. 81, 676 S.E.2d 445, 2009 Ga. App. LEXIS 356 (2009). Evidence of intent. - Admission of a photocopy of a syringe which was subsequently taken from defendant and subsequently destroyed by the police did not deprive defendant of the right to an independent examination of critical evidence because defendant admitted possessing the syringe; thus, the only disputed element of the offense was defendant’s intent to use it. Rogers v. State, 224 Ga. App. 359, 480 S.E.2d 368, 1997 Ga. App. LEXIS 87 (1997). “Crack pipe” without crack residue. - Possession of a “crack pipe” is possession of a drug related object in contravention of O.C.G.A. § 16-13-32.2, regardless of whether there is any crack residue in the pipe. Jones v. State, 237 Ga.

App. 847, 515 S.E.2d 841, 1999 Ga. App. LEXIS 463 (1999), cert. denied, No. S99C1249, 1999 Ga. LEXIS 751 (Ga. Sept. 17, 1999). Methamphetamine pipe found in pat-down admissible. - Statement by a defendant who had been stopped for speeding that the defendant had a knife, and the defendant’s overly-nervous demeanor, authorized a trooper to pat the defendant down for the trooper’s safety. A “plain feel” of an apparent methamphetamine pipe in the defendant’s pocket authorized the trooper to remove the pipe; therefore, the pipe was admissible. Hicks v. State, 293 Ga. App. 745, 667 S.E.2d 715, 2008 Ga. App. LEXIS 1068 (2008). Methamphetamine pipe admissible. - Evidence was sufficient to support the defendant’s conviction for possession of drug related objects in violation of O.C.G.A. § 16-13-32.2 because a deputy with experience investigating drug crimes testified that a pipe found on the defendant was used for smoking methamphetamine. McGhee v. State, 303 Ga. App. 297, 692 S.E.2d 864, 2010 Ga. App. LEXIS 346 (2010). Methamphetamine pipe not admissible. - Trial court abused the court’s discretion in finding that the defendant possessed the methamphetamine pipe because there was no admissible evidence showing that the defendant possessed the methamphetamine pipe, the defendant was in the back of a patrol car when the sergeant arrived at the residence, and no non-hearsay evidence showed that the defendant owned the truck where the pipe was found. Wright v. State, 355 Ga. App. 417, 844 S.E.2d 279, 2020 Ga. App. LEXIS 322 (2020). Use of similar transaction evidence in drug possession. - With regard to the defendant’s convictions for trafficking

in cocaine and possession of a drug related object, the trial court did not abuse the court’s discretion by allowing the state to introduce evidence of the defendant’s 2003 drug possession incident because both incidents involved the possession and concealment of cocaine and, during both incidents, the defendant described the process by which the drugs were obtained. Stover v. State, 322 Ga. App. 142, 744 S.E.2d 119, 2013 Ga. App. LEXIS 467 (2013). Motion to suppress denied when deputy simply asked question. - Motion to suppress filed by a defendant charged with possession of marijuana and possession of a drug-related object, O.C.G.A. §§ 16-13-30(j)(1) and 16-13-32.2(a), should have been denied because a deputy’s question to the defendant, whether there was anything in the vehicle the deputy needed to know about, did not elevate a first-tier police-citizen encounter to a detention. State v. Martin, 337 Ga. App. 390, 787 S.E.2d 314, 2016 Ga. App. LEXIS 330 (2016). Merger of offenses. - Defendant’s conviction for possession of drug-related objects merged as a matter of fact into defendant’s felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678, 549 S.E.2d 151, 2001 Ga. App. LEXIS 543 (2001), cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Ga. Oct. 1, 2001). Trial court did not err in failing to merge the defendant’s convictions for possession of drug-related objects and possession of methamphetamine, each of which required proof that the other did not. Lee v. State, 347 Ga. App. 508, 820 S.E.2d 147, 2018 Ga. App. LEXIS 559 (2018). Felony sentence vacated. - Defendant’s felony sentence for possession of drug-related objects, a misdemeanor offense, was vacated as the state conceded the impropriety of the sentence. Lewis v. State, 268 Ga. App. 547, 602 S.E.2d 278, 2004 Ga. App. LEXIS 962 (2004). In a prosecution for the possession of tools for the commission of a crime, which was a felony, while the evidence presented against the defendant was sufficient to support the jury’s verdict, because the

defendant’s conduct could also have been charged as a misdemeanor offense of possession of a drug related object, pursuant to O.C.G.A. § 16-13-32.2(a) and the rule of lenity, the felony conviction was reversed, and the matter was remanded for a resentencing on the misdemeanor offense. Washington v. State, 283 Ga. App. 570, 642 S.E.2d 199, 2007 Ga. App. LEXIS 118 (2007). Resentencing required. - Because the revocation petition did not specify which Code section defendant was alleged to have violated for the drug-related objects offense and instead simply accused the defendant of possessing certain specified drug-related objects, the only violation alleged and proven fell under O.C.G.A. § 16-13-32.2, a misdemeanor, therefore, the trial court was not authorized to revoke more than two years of the defendant’s outstanding probation. Henley v. State, 317 Ga. App. 776, 732 S.E.2d 836, 2012 Ga. App. LEXIS 816 (2012). Conflicts in testimony were for jury to resolve. - There was sufficient evidence to support a conviction for possession of methamphetamine and possession of drug related objects when the defendant admitted telling officers that the defendant owned a pipe that had methamphetamine residue on the pipe, but said that the admission had been made under pressure and that a purse in which drug-related items were found was a “community purse” used by employees of the convenience store where the defendant worked; it was for the jury to resolve conflicts in the testimony and to weigh the evidence. Doyal v. State, 287 Ga. App. 667, 653 S.E.2d 52, 2007 Ga. App. LEXIS 894 (2007). Evidence sufficient to support conviction. - There was sufficient evidence to support convictions for trafficking in cocaine and possession of a drug-related object, in violation of O.C.G.A. §§ 16-13-31(a)(1) and 16-13-32.2, against the defendant as the defendant’s van contained items used as drug pipe filters, the defendant’s passenger had dropped crack cocaine on the ground just prior to being apprehended, both individuals had large

amounts of cash on them, and the defendant had a criminal history of similar drug-related conduct. Holloway v. State, 297 Ga. App. 81, 676 S.E.2d 445, 2009 Ga. App. LEXIS 356 (2009). Evidence was sufficient to convict the defendant of possession of methamphetamine, possession of methamphetamine with intent to distribute, and two counts of possession of drug-related objects as the state presented ample evidence of the defendant’s constructive possession of the methamphetamine and drug paraphernalia found inside a fabric bag because the contraband was found in the defendant’s residence, which authorized a jury to presume that the defendant possessed it; a witness testified that the defendant and another individual sold methamphetamine; and a law-enforcement officer testified that the items contained in the bag, such as separate baggies and a digital scale, showed an intent to distribute drugs. Duncan v. State, 346 Ga. App. 777, 815 S.E.2d 294, 2018 Ga. App. LEXIS 387 (2018), overruled on other grounds, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). 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 Ga. App. LEXIS 533 (2013). Lesser included offense to trafficking. - Crimes set forth in O.C.G.A. §§ 16-13-30.3(b)(2) and 16-13-32.2, 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 Ga. App. LEXIS 533 (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 Ga. App. LEXIS 1008 (2013).

RESEARCH REFERENCES ALR. Construction and application of state

drug paraphernalia acts, 23 A.L.R.6th 307.