ALERT: If you were arrested for marijuana possession May, 2019, or later, be aware that prosecutors throughout Georgia are dismissing marijuana cases because of the new the hemp farming law. The State is currently unable to distinguish legal hemp from illegal marijuana. Therefore, until the law changes or drug testing gets updated, if you were recently arrested for marijuana possession, know that you may be able to get your marijuana possession case dismissed. The Cobb County Police have joined Gwinnett County and declared that they have temporarily suspended misdemeanor marijuana arrests.
Drug arrests commonly involve possession of a small amount of marijuana, ecstasy, cocaine, methamphetamine or other illegal drugs. Punishments can be much more serious in case involving selling, possession with intent to sell, trafficking, and manufacturing. In Georgia drug offenses are declared unlawful under the Georgia Criminal Code at O.C.G.A. 16-13-30 and known as Violations of the Georgia Controlled Substances Act, or V.G.C.S.A..
Possession of an ounce or more of cocaine, methamphetamine, ecstasy, “molly” , etc., is considered not merely drug possession but drug trafficking. Possession of 14 grams of heroin is also trafficking. Upon conviction of drug trafficking, the trial judge is usually required by law to sentence the defendant to at least ten years in prison. This is the rule, but there are exceptions. Thus, it is important to consult a Georgia criminal lawyer to explore all possible defenses, reduction of charges (plea bargaining) as well as the several ways to avoid a criminal record detailed below. On the other hand, the 2012 Sentencing Reform Act, has greatly decreased the maximum penalty of imprisonment for possession of less than one gram of certain drugs to three years or less. Less than one gram is considered a “residue” case, such as when an individual is arrested for possession of a previously smoked, burned out crack or methamphetamine pipe, or crumbs of the substance. Practically speaking, this means an individual arrested for several grams of illegal drugs can, under the right circumstances, plea bargain his or her case to a guilty plea of less than one gram of drugs and therefore a lesser maximum sentence. This would be particularly valuable if the individual wanted to additionally take advantage of Georgia’s conditional discharge, first offender law, record restriction (formerly expungement) and sealing laws. Further details regarding this possible strategy involve quite a bit more explanation and are beyond the scope of this presentation but are worth further discussion with us.
In the last few years. Possession of THC Oil arrests and prosecutions have become much more common. You would think that these cases are no big deal since THC comes from marijuana and marijuana penalties are being decriminalized in the City of Atlanta or otherwise being reduced these days. However, THC Oil cases are considered serious drug cases in Georgia. THC Oil is considered a Schedule One drug, the same classification as heroin. Therefore, should you be arrested for THC Oil possession, don’t be falsely mislead into believing that it’s just like marijuana and therefore no big deal. Because it really is.
Motions to Suppress Evidence
Usually the strongest evidence (and thus the most important for the prosecution) is the drugs themselves. Therefore, the first goal of the defense is the possible suppression of this evidence. This would prevent the drugs from being used as evidence against the accused in court.
A motion to suppress evidence is based upon the idea that evidence has been illegally obtained as the product of a search or seizure, that violates the U.S. Constitution, the Georgia Constitution, or both. The trial court decides this issue after a hearing wherein the criminal defense lawyer questions the officers and other witnesses involved in the case, and argues to the trial court why the evidence (drugs) should be suppressed and kept out of the trial. If the lawyer is successful, it usually cripples the State’s drug case and may result in dismissal of the charges. There are different laws that govern whether or not a search is illegal, depending upon what is searched and who does the searching.
For example, the law recognizes a greater expectation of privacy in a person’s house, as opposed to a person’s car. This is because cars and their contents are exposed to the public, and because of their mobility. An experienced Georgia criminal defense lawyer can spot these issues, analyze them properly, and make a forceful argument on your behalf in court.
Impeachment of the Police Officer
Some police officers and other witnesses, if they think they can get away with it, will lie in court against an accused citizen. A criminal defense lawyer is trained to impeach (prove that the witness is not telling the truth) a lying witness, whether the witness is a police officer, or anyone else. Impeachment of the police comes up frequently in drug cases because the government heavily relies on the word on just one or two police officers about just what happened. For an example, see the below excerpt from a probation revocation hearing.
The police sometimes try to take away or “seize” from the accuse citizen, materials considered tools or rewards of the drug trade in what is called a forfeiture action. This can include cars, homes, cash, phones, boats, and any other asset. An experienced criminal defense attorney can work to protect assets from forfeiture. Further, depending on the circumstances,these items can also be used as a bargaining chip with the prosecution in regards to a more favorable disposition of the criminal drug case.
Trial courts throughout Georgia now recognize that treatment and rehabilitation is far more appropriate than jail or prison in helping people deal with a drug problem. If you have been arrested for a drug-related offense, there are different treatment options, each with its own advantages and disadvantages. Depending on the circumstances of the case, alternatives to jail, prison sentences, or convictions, can include Diversion, Pretrial Intervention (PTI), Drug Court, First Offender, Work Release, and Conditional Discharge. Each of these choices has different requirements for successful completion and the accused may be eligible for one or more of these alternatives. These alternatives almost always require drug counseling and random screens, and sometimes include several months of residential rehabilitation treatment, community service, fines or fees, and letters of recommendation. A knowledgeable criminal defense attorney who cares about your personal situation will be able to help you determine what alternatives are available and which option is best.
A drug court also known as drug treatment court, is a special court given the responsibility of handling cases involving drug abusers through a demanding and extensive supervision and treatment program. Many Georgia counties have not yet instituted a drug court program. The specifics of the programs that do exist will vary from county to county. However each program will typically be separated into phases, where the participant earns more freedoms with the passage of time and completion of the preceding part of the program. Sometimes a period of jail time is required. Also if a participant violates a drug court rule, say by having a positive drug screen (illegal drugs or alcohol in body), that person could be punished by a few days in jail, being held back a stage in the program, or being expelled from the program. However, in some counties and situations, when the participant successfully completes the program, the case will be dismissed. Thus, there are pros and cons to sentencing alternatives and to drug court. In fact, some of these alternatives can be quite difficult and result in high drop out rates. If you or someone you care about has a drug case, please contact the Law Offices of Bert W. Cohen for a no cost, no obligation, confidential consultation.
Bert W. Cohen, Marietta, Cobb County and Metro Atlanta Criminal Defense Lawyer, 321 Lawrence Street, Marietta, GA 30060, Tel: (404) 641-8959