O.C.G.A. § 42-5-18 (2019)
Items prohibited for possession by inmates; warden’s authorization; penalty; use of unmanned aircraft to accomplish violations
(a) As used in this Code section, the term: (1) “Inmate” means a prisoner, detainee, criminal suspect, immigration detainee, or other person held, incarcerated, or detained in a place of incarceration, whether or not such person is inside or outside of such place of incarceration. (2) “Place of incarceration” means any prison, probation detention center, jail, or institution, including any state, federal, local, or privately operated facility, used for the purpose of incarcerating criminals or detainees. (3) “Telecommunications device” means a device, an apparatus associated with a device, or a component of a device that enables, or may be used to enable, communication with a person outside a place of incarceration, including a telephone, cellular telephone, personal digital assistant, transmitting radio, or computer connected or capable of being connected to a computer network, by wireless or other technology, or otherwise capable of communicating with a person or device outside of a place of incarceration. (4) “Warden or superintendent” means the commissioner or any warden, superintendent, sheriff, chief jailer, or other person who is responsible for the overall management and operation of a place of incarceration. (b) It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate a gun, pistol, or any other weapon; any intoxicating liquor; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; any telecommunications device; or any other article or item without the authorization of the warden or superintendent or his or her designee. (b.1) It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate tobacco or any product containing tobacco without the authorization of the warden or superintendent or his or her designee. (c) It shall be unlawful for an inmate to possess a gun, pistol, or any other weapon; any intoxicating liquor; tobacco or any product containing tobacco; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; a telecommunications device; or any other item without the authorization of the warden or superintendent or his or her designee. (d)(1) An inmate who commits or attempts to commit a violation of subsection (c) of this Code section shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if an inmate violates this Code section while being held pursuant to an arrest or conviction for a misdemeanor offense, the possession of a telecommunications device in violation of this Code section shall be treated as a misdemeanor. (2) A person who commits or attempts to commit a violation of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be sentenced to a mandatory minimum term of imprisonment of two years but not more than ten years, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court. (3) A person who commits or attempts to commit a violation of subsection (b.1) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years. (e)(1) It shall be unlawful for an inmate to possess a stored value card, the account number of a stored value card, or the personal identification number of a stored value card. (2) It shall be unlawful for any person to obtain for, to procure for, or to give an inmate a stored value card, the account number of a stored value card, or the personal identification number of a stored value card. (3) A person who commits a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced to a term of imprisonment of not less than one nor more than ten years, unless the judge imposes a misdemeanor sentence pursuant to Code Section 17-10-5. (f)(1) It shall be unlawful for any person to intentionally use an unmanned aircraft system to violate the provisions of subsection (b) or (b.1) of this Code section. (2)(A) It shall be unlawful for any person to intentionally photograph or otherwise record images of a place of incarceration through the use of an unmanned aircraft system for purposes of committing a criminal offense. (B) Any person may secure prior authorization from the warden or the superintendent, or his or her designated representative, of such place of incarceration for photographing or recording as evidence of a noncriminal intent; provided, however, that failure to secure such prior authorization shall not evidence a criminal intent.
STATE/COUNTY CORRECTIONAL INST.
(3) Any person who commits or attempts to commit a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced as follows: (A) Any person convicted of a violation of paragraph (1) of this subsection shall be imprisoned for not less than one nor more than ten years; and (B) Any person convicted of paragraph (2) of this subsection shall be imprisoned for not less than one nor more than five years. (4) For purposes of this Code section, the term “unmanned aircraft system” shall have the same meaning as provided for in Code Section 6-1-4.
History
Ga. L. 1976, p. 1506, § 2; Ga. L. 1984, p. 593, § 1; Ga. L. 2008, p. 533, § 1/SB 366; Ga. L. 2016, p. 811, § 8/HB 874; Ga. L. 2017, p. 673, § 3-3/SB 149; Ga. L. 2018, p. 1112, § 42/SB 365; Ga. L. 2019, p. 293, § 1/SB 6; Ga. L. 2020, p. 493, § 42/SB 429.
Annotations
Cross references. Similar provisions regarding furnishing of alcoholic beverages to inmates of jails, penal institutions, correctional facilities, or other lawful places of confinement, § 33-25.
Code Commission notes. Pursuant to Code Section 28-9-5, in 2023, “jailer” was substituted for “jailor” in paragraph (a)(4). Administrative rules and regulations. Departmental Operations, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Chapter 125-2. Institutional and Center Operations, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Chapter 125-3.
JUDICIAL DECISIONS “Weapon” defined. - Jury’s finding that a “water bug” (a device used to bring a liquid to a boil), which defendant threw at correctional officers, was a “weapon,” within the meaning of subsection (b) of O.C.G.A. § 42-5-18, was not unreasonable. Culbertson v. State, 193 Ga. App. 9, 386 S.E.2d 894, 1989 Ga. App. LEXIS 1301 (1989). Trial court erred dismissing indictment. - Trial court erred dismissing an indictment against the defendant charging furnishing prohibited items to an inmate and crossing guard lines with drugs because the only evidence regarding the content of the missing video footage was that it showed defendant’s commission of the charged crimes and was, therefore, inculpatory, and the record did not show any exculpatory value of footage was apparent before it became unavailable. State v. Newberry, 366 Ga. App. 567, 883 S.E.2d 581, 2023 Ga. App. LEXIS 43 (2023).
Evidence sufficient for conviction of possession of drugs by an inmate. Webb v. State, 249 Ga. App. 214, 547 S.E.2d 767, 2001 Ga. App. LEXIS 464 (2001). Defendant’s conviction for the unauthorized possession of drugs by an inmate, contrary to O.C.G.A. § 42-5-18(b), was based on sufficient evidence as the evidence showed that during a confiscation and inventory of defendant’s personal possessions, before moving the defendant to a new cell, a shampoo bottle containing a substance determined to be marijuana was discovered. Collinsworth v. State, 276 Ga. App. 58, 622 S.E.2d 419, 2005 Ga. App. LEXIS 1146 (2005). There was sufficient evidence to support the defendant’s conviction for furnishing prohibited items to inmates, including the defendant’s admission that the defendant agreed to bring items to the prison and planned to throw the items over the fence,
the defendant was seen outside the prison fence long after visiting hours had ended, lying in the grass attempting to conceal the bundles, and the defendant ran when approached, leading to the conclusion that the warden had not authorized the defendant’s actions. Terrell v. State, 353 Ga. App. 780, 839 S.E.2d 274, 2020 Ga. App. LEXIS 73 (2020), cert. denied, No. S20C0930, 2020 Ga. LEXIS 819 (Ga. Sept. 28, 2020). Evidence insufficient to support conviction. - Defendant’s conviction for possession of drugs by an inmate in violation of O.C.G.A. § 42-5-18(c) was reversed because the state failed to present any evidence to support even an inference that the defendant had any prior knowledge of drugs that were found in a bag or any idea what was in the bag; the state failed to demonstrate that the defendant had the bag in the defendant’s possession for any
reason other than the performance of the defendant’s assigned duties of cleaning the visitation lobby in the prison and, thus, failed to exclude the reasonable hypothesis that the defendant was merely performing the job when the defendant removed the bag from one trash can and placed the bag in the other. Strozier v. State, 313 Ga. App. 804, 723 S.E.2d 39, 2012 Ga. App. LEXIS 84 (2012). Sentencing based on listed items. - Trial court did not err in sentencing the defendant on all three counts because O.C.G.A. § 42-5-18 unequivocally listed a variety of specific items, separated by semicolons, and defendant was sentenced related to crimes involving distinct, separate items, identified in different statutory clauses. Terrell v. State, 353 Ga. App. 780, 839 S.E.2d 274, 2020 Ga. App. LEXIS 73 (2020), cert. denied, No. S20C0930, 2020 Ga. LEXIS 819 (Ga. Sept. 28, 2020).
OPINIONS OF THE ATTORNEY GENERAL Applicability. - This section is applicable only when the items referred to are obtained or procured for or given to a convict. It is not applicable if the items
referred to are obtained or procured for or given to a prisoner being held in a county jail who has not yet been convicted of any crime. 1980 Op. Att’y Gen. No. U80-12.
RESEARCH REFERENCES C.J.S. 72 C.J.S., Prisons and Rights of Prisoners, §§ 60 et seq., 72. ALR. Nature and elements of offense of conveying contraband to state prisoner, 64 A.L.R.4th 902.
Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 A.L.R.5th 767.