O.C.G.A. § 16-13-5 (2019)

Annotations

Editor’s notes. Ga. L. 2014, p. 683, § 1-1/HB 965, not codified by the General Assembly, provides that: “This part [Part I of the Act] shall be known and may be cited as the ‘Georgia 9-1-1 Medical Amnesty Law.’” Ga. L. 2014, p. 683, § 1-2/HB 965, not codified by the General Assembly, provides: “WHEREAS, according to the Atlanta Journal Constitution (‘AJC’), more than 600,000 Americans used heroin in 2012, which is nearly double the number from five years earlier according to health officials; and

“WHEREAS, the AJC article states that ‘[t]he striking thing about heroin’s most recent incarnation is that a drug that was once largely confined to major cities is spreading into suburban and rural towns across America, where it is used predominantly by young adults between the ages of 18 and 29’; and “WHEREAS, the Drug Enforcement Agency has noted that the ‘skyrocketing’ increase in the availability of cheap heroin is a direct reaction by cartels to legislative efforts to regulate and restrict access to opiate prescription painkillers; and “WHEREAS, Stephen Cardiges of Lawrenceville died of an accidental heroin overdose; and “WHEREAS, Randall Brannen of McDonough died of an accidental overdose; and “WHEREAS, Stephen and Randall are a part of a growing trend of drug overdose victims in Georgia; and “WHEREAS, those who were with them did not call 9-1-1 to seek medical assis-

tance, which could have saved their lives, because of a fear of prosecution for the possession and use of illegal drugs; and “WHEREAS, Overdose Reporting/Medical Amnesty legislation, or ‘9-1-1 Good Samaritan Laws,’ have been passed in 14 states, including Florida and North Carolina, and is under consideration in several more; and “WHEREAS, in North Carolina, it is believed that at least 20 lives have been saved since passage last year of similar legislation, and in Massachusetts it is believed that more than 120 lives have been saved since passage of similar legislation in that state in 2012; and

“WHEREAS, overdose deaths result from a variety of substances, including prescription painkillers, heroin, methamphetamine, designer drugs, and alcohol.” Ga. L. 2014, p. 683, § 3-1(b)/HB 965, not codified by the General Assembly, provides, in part, that: “Parts I and II of this Act shall apply to all acts committed on or after such effective date [April 24, 2014].” Law reviews. For article, “From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The Overdose/Homicide Epidemic,” see 34 Georgia St. U.L. Rev. 983 (2018).

JUDICIAL DECISIONS Defendant entitled to immunity. - When the defendant was charged with two counts of possession of drugs, the defendant was entitled to immunity from prosecution under the Georgia 9-1-1 Medical Amnesty Law because the defendant’s prosecution was the result of being the subject of a request for medical assistance while the defendant was experiencing a drug overdose as three people called 911 to report that the defendant was lying in the street next to

the defendant’s car; emergency responders were dispatched on the basis of the calls; and law enforcement officers, who searched the defendant’s car and found the pills that became the evidence in support of the prosecution, were present solely because the bystanders called for medical assistance to the defendant. State v. Mercier, 349 Ga. App. 536, 826 S.E.2d 422, 2019 Ga. App. LEXIS 198 (2019).

ARTICLE 2 REGULATION OF CONTROLLED SUBSTANCES Cross references. Disciplinary action for student of public educational institution convicted of controlled substance offense, § 20-1-23. Disciplinary action for student of nonpublic educational institution convicted of controlled substance abuse, § 20-1-24. Law reviews. For comment on Tant v. State, 123 Ga. App. 760, 182 S.E.2d 502 (1971), advocating additional reform of Georgia’s

system of appellate review of criminal cases, see 9 Ga. St. B. J. 490 (1973). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For note on 2000 amendments of O.C.G.A. §§ 16-13-26 to 16-13-28, see 17 Georgia St. U.L. Rev. 85 (2000). For comment, “The Opioid Epidemic: Returning to the Basics,” see 70 Mercer L. Rev. 525 (2019).

JUDICIAL DECISIONS Constitutionality. - Georgia Controlled Substances Act (see now O.C.G.A. § 16-13-20 et seq.) is not unconstitutional as violating Ga. Const.

1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para. III), which prohibits inclusion of more than one subject matter in any Act of the

General Assembly. Lord v. State, 235 Ga. 342, 219 S.E.2d 425, 1975 Ga. LEXIS 875 (1975). Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., is not an unconstitutional delegation of legislative authority on ground that the General Assembly has failed to maintain control over determination of whether a substance should fall within its purview, since O.C.G.A. § 16-13-22 provides that State Board of Pharmacy shall consider nine factors and shall make findings after considering those nine factors. Consideration of the statutory factors is mandatory. Ward v. State, 248 Ga. 60, 281 S.E.2d 503, 1981 Ga. LEXIS 900 (1981). Possession distinguished from DUI. - Possession of controlled substance is separate and distinct from conduct required to establish offense of driving under influence of intoxicants, although the offenses may arise out of the same conduct, i.e., driving. Rogers v. State, 166 Ga. App. 299, 304 S.E.2d 108, 1983 Ga. App. LEXIS 2143 (1983). When exclusive possession of an automobile is shown, there is a rebuttable presumption that the owner has possession of the property contained therein. This presumption does not apply if it can be shown that the defendant had not been in possession or control for a period before discovery of contraband or where others had equal access to the automobile. Ledesma v. State, 251 Ga. 487, 306 S.E.2d 629, 1983 Ga. LEXIS 797 (1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 975, 79 L. Ed. 2d 213, 1984 U.S. LEXIS 771 (1984). Evidence of access by others. - Mere presence of contraband on premises occupied by accused is insufficient to sustain conviction where there is evidence of access by others. Shockley v. State, 166 Ga. App. 182, 303 S.E.2d 519, 1983 Ga. App. LEXIS 2092 (1983). State established that controlled substance was in defendant’s possession. - See White v. State, 168 Ga. App. 609, 309 S.E.2d 848, 1983 Ga. App. LEXIS 3426 (1983). Pharmacy license as defense to drug possession charge. - Whether an individual has a license or is otherwise

lawfully permitted to have in the individual’s possession narcotic drugs is a matter of defense and not an element of the offense. Woods v. State, 233 Ga. 347, 211 S.E.2d 300, 1974 Ga. LEXIS 760 (1974). A sale of drugs is complete when the seller delivers the drugs to the feigned buyer. Robinson v. State, 164 Ga. App. 652, 297 S.E.2d 751, 1982 Ga. App. LEXIS 3338 (1982). No entrapment occurs when idea of selling illegal drugs is not planted in the defendant’s mind by an undercover officer, but the defendant is predisposed to make such a sale and the officer merely provides the opportunity. Sibley v. State, 166 Ga. App. 142, 303 S.E.2d 465, 1983 Ga. App. LEXIS 2081 (1983). Use of a “narcotics” dog, especially trained to detect marijuana and narcotics, is an authorized investigative technique. Lockhart v. State, 166 Ga. App. 555, 305 S.E.2d 22, 1983 Ga. App. LEXIS 3249 (1983). Evidence from search incident to arrest admissible. - Admission into evidence of substances contained within boxes and envelopes found on the defendant’s person during a search incident to the defendant’s arrest for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., is not error. Dasher v. State, 166 Ga. App. 237, 304 S.E.2d 87, 1983 Ga. App. LEXIS 2115 (1983). Written confession is not involuntarily given when the confession is induced by the arresting officer’s promise of “cooperation,” which offer is directed toward obtaining information regarding the source of the illegal drugs or regarding other individuals who might be involved in illegal drugs and which does not refer to the defendant’s giving a statement or confession to the police. Worley v. State, 166 Ga. App. 794, 305 S.E.2d 485, 1983 Ga. App. LEXIS 2334 (1983). Identification of contraband. - Trial judge is charged with the final responsibility of evaluating the links of the chain of custody to ascertain if the evidence of identification of contraband has become so attenuated as to become irrelevant or incompetent as an aid in

determining the issue of guilt or innocence. Thomas v. State, 166 Ga. App. 559, 305 S.E.2d 151, 1983 Ga. App. LEXIS 2246 (1983). Trial court may, as matter of discretion, refuse to permit examination by defendant of substance used as evidence of violation of the Georgia Controlled Substances Act (see now O.C.G.A. § 16-13-20 et seq.). Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, 1977 Ga. LEXIS 963, cert. denied, 431 U.S. 970, 97 S. Ct. 2932, 53 L. Ed. 2d 1067, 1977 U.S. LEXIS 2414 (1977). Defendant’s right to have substance analyzed by expert of defendant’s choosing. - Defendant charged with possession or sale of a prohibited substance has a general right to have expert of defendant’s choosing analyze it independently. Where defendant’s conviction or acquittal is dependent upon identification of substance as contraband, due process of law requires that analysis of substance not be left completely within province of state. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, 1977 Ga. LEXIS 963, cert. denied, 431 U.S. 970, 97 S. Ct. 2932, 53 L. Ed. 2d 1067, 1977 U.S. LEXIS 2414 (1977). Motion for independent examination of substance to be used as evidence must be timely made. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, 1977 Ga. LEXIS 963, cert. denied, 431 U.S. 970, 97 S. Ct. 2932, 53 L. Ed. 2d 1067, 1977 U.S. LEXIS 2414 (1977). Defendant’s expert should conduct analysis in state laboratory. - When the defendant’s expert is to examine substance to be used as evidence of violation of the Georgia Controlled Substances Act (see now O.C.G.A. § 16-13-20 et seq.), appropriate safeguards to ensure evidence is properly preserved would generally require expert to conduct examination in state laboratory. Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, 1977 Ga. LEXIS 963, cert. denied, 431 U.S. 970, 97 S. Ct. 2932, 53 L. Ed. 2d 1067, 1977 U.S. LEXIS 2414 (1977). Counsel’s failure to object to use of defendant’s prior conviction to fix length of sentence. - While the trial court used defendant’s prior conviction to

fix the length of defendant’s sentence for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., defendant’s failure to object to such evidence waived the trial court’s error; however, as defendant’s attorney failed to object to the trial court’s use of defendant’s prior conviction, defendant received ineffective assistance and was entitled to a new trial. Turner v. State, 259 Ga. App. 902, 578 S.E.2d 570, 2003 Ga. App. LEXIS 297 (2003). Weight and believability of evidence are jury questions. - Ultimate weight and believability of the evidence to show the true nature of the allegedly illegal substance and the identity of the substance’s seller should be left to the jury. Thomas v. State, 166 Ga. App. 559, 305 S.E.2d 151, 1983 Ga. App. LEXIS 2246 (1983). Evidence sufficient for conviction. - See Choice v. State, 168 Ga. App. 28, 308 S.E.2d 1, 1983 Ga. App. LEXIS 3369 (1983); Stewart v. State, 168 Ga. App. 154, 308 S.E.2d 615, 1983 Ga. App. LEXIS 3380 (1983); Grimes v. State, 168 Ga. App. 372, 308 S.E.2d 863, 1983 Ga. App. LEXIS 3403 (1983); Herndon v. State, 187 Ga. App. 77, 369 S.E.2d 264, 1988 Ga. App. LEXIS 593 (1988); Holmes v. State, 187 Ga. App. 214, 369 S.E.2d 533, 1988 Ga. App. LEXIS 558 (1988); Anfield v. State, 188 Ga. App. 345, 373 S.E.2d 51, 1988 Ga. App. LEXIS 1036 (1988); Jones v. State, 191 Ga. App. 332, 381 S.E.2d 575, 1989 Ga. App. LEXIS 608 (1989); Howard v. State, 191 Ga. App. 418, 382 S.E.2d 159, 1989 Ga. App. LEXIS 640 (1989), overruled in part, Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018). Evidence that marijuana was found in the bedroom closet of the defendant’s home and not affirmatively showing that anyone but the defendant had actual access to the closet was sufficient for a conviction of possession of marijuana. Burrell v. State, 171 Ga. App. 648, 320 S.E.2d 810, 1984 Ga. App. LEXIS 2307 (1984). Evidence that the defendant lived for one year, along with defendant’s spouse and small child, in the house searched, that the old refrigerator where marijuana

was found was only 30 steps from the house, that the path between the house and the refrigerator was well worn and led directly from the house to the refrigerator, supported the jury’s conclusion that the defendant “possessed the contraband drugs knowingly, exclusively or at least jointly.” Norris v. State, 171 Ga. App. 676, 320 S.E.2d 886, 1984 Ga. App. LEXIS 2999 (1984). Defendant’s admission of cocaine use, along with other evidence showing that cocaine was on the seat and floorboard on the passenger side of the automobile in which defendant was a passenger, was more than sufficient to authorize a rational trier of fact to find that defendant was guilty of possession of cocaine beyond a reasonable doubt. Hall v. State, 188 Ga. App. 322, 373 S.E.2d 32, 1988 Ga. App. LEXIS 1042 (1988).

When a search of defendant’s car produced, among other things, drugs, syringes, scales, and a slip of paper with amounts of money listed next to various names and initials, there was sufficient evidence from which the jury was authorized to find defendant guilty beyond a reasonable doubt of trafficking in methamphetamine. Yarbrough v. State, 264 Ga. App. 848, 592 S.E.2d 681, 2003 Ga. App. LEXIS 1591 (2003). Denial of an appeal bond is not an abuse of discretion when the appellant admits that appellant has been addicted to drugs and that appellant has supported that addiction by shoplifting, resulting in previous arrests for that offense. Corbitt v. State, 167 Ga. App. 576, 307 S.E.2d 133, 1983 Ga. App. LEXIS 2552 (1983).

OPINIONS OF THE ATTORNEY GENERAL Applicability to state and local agencies. - State and local agencies are subject to the requirements of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., but are not subject to

the requirements of the Dangerous Drug Act, O.C.G.A. § 16-13-70 et seq., since there is no definition of “person” specifically applicable to the Dangerous Drug Act. 1986 Op. Att’y Gen. No. 86-28.

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Drugs and Controlled Substances, § 10. C.J.S. 28 C.J.S., Drugs and Narcotics, § 210 et seq. ALR. Entrapment to commit offense with respect to narcotics law, 33 A.L.R.3d 883.

Liability for discharge of at-will employee for refusal to submit to drug testing, 79 A.L.R.4th 105. Propriety of stop and search by law enforcement officers based solely on drug courier profile, 37 A.L.R.5th 1.

PART 1 SCHEDULES, OFFENSES, AND PENALTIES Editor’s notes. Ga. L. 2011, p. 659, § 2/SB 36, effective July 1, 2011, redesignated the former

provisions of Article 2 of Chapter 13, Title 16 as Part 1, Article 2 of Chapter 13, Title 16.