GEORGIA DRUG TRAFFICKING CHARGES
What is drug trafficking? Drug trafficking is a serious criminal charge based on certain quantities of illegal drugs. Trafficking generally includes allegations that an individual possesses, sells, distributes or manufactures a large amount of illegal drugs.
The difference between drug trafficking and other drug crimes – like drug possession, drug distribution or drug manufacturing – is the quantity of drugs involved in the offense. In most states, the case has to involve more than several pounds of marijuana or an ounce or more of “harder” drugs (like cocaine, methamphetamine, ecstasy, LSD, etc.) to be charged with drug trafficking.
Because there is a larger amount of drugs involved in a trafficking case, drug trafficking charges can carry serious mandatory minimum prison sentences that usually increase with the quantity of the drugs.
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We have successfully represented clients in serious criminal cases across the United States. Our firm has offices in Atlanta GA and Brunswick GA, and we frequently travel to other courts across the state to represent people in serious criminal cases.
Here is a short video describing drug trafficking laws in Georgia, including some defenses that our firm has used in the past to win these cases at trial or successfully resolve them before they ever get to trial.
“I’ve been representing people in federal court over the past 20 years, and I’ve handled a lot of federal drug conspiracy cases. One of the things I’ve learned is that most people, when they’re charged with something like this, really don’t know what a drug conspiracy is. So I thought it might be helpful to talk about the basics. What is a drug conspiracy?
In order to convict somebody in federal court of a drug conspiracy charge, the government has to prove two elements. The first element is that there is an agreement to violate the drug laws, and that sounds pretty simple. And it is. The government does not have to show that there is some sort of formal agreement, or contract, or anything like that. It’s just a general understanding or plan between two or more people to do something that violates the federal drug laws. That can be importing drugs, it can be distributing drugs, it can be possessing drugs with the intent to distribute. It can be manufacturing drugs. As long as there’s an agreement between two or more people to do something that violates the federal drug laws, the government can prove that first element.
But the government also has to show a second element – that the person, the person being charged in this case, knows about the agreement and joins in the agreement. Understanding what’s going on, they say, “Hey, I wanna be a part of this.” Now that’s it, just those two elements. If the government can prove both of these things then they can charge someone with a drug conspiracy.
Now notice what’s missing here. The government does not have to show that a person actually sold drugs. They don’t have to show that a person even had drugs. It’s just this agreement, and then knowing about the agreement, saying, “I wanna be a part of it.” The person can drive a car and be part of a drug conspiracy. They can make a few phone calls and be part of a drug conspiracy. There is no requirement that the person actually has to handle any drugs.
Well, if it’s this broad, you wonder, “Are there any defenses to it?” Because it is very broad under federal law. There are defenses, and there are several that we have used effectively in court when we’re representing someone charged in a drug conspiracy case.
The first obvious defense is that there’s no unlawful agreement. A good example of that is a case I handled just last year representing a doctor who worked at a pain clinic. Now he ran a medical practice and he prescribed pain medication, opioid pain medication, to a number of different patients for chronic pain. The government stepped in and said, “You’re prescribing too much medication. We don’t think these people really need it, and so you violated the federal drug laws.” Well, we were able to show the government that there was no unlawful agreement. He was simply prescribing medicine for his patients, and he was acting within the legitimate medical practice and what his license allowed. So there was no unlawful agreement. Obviously there was an agreement. They had a medical practice, they were prescribing drugs, but it wasn’t unlawful.
Another defense is that there is no knowledge of the agreement. The person being charged, while there may be an agreement, he doesn’t know about it. Great example of this defense is a case I tried here in Atlanta a couple of years ago. I represented a pilot who had a charter airline service. He had been flying two folks from the Mexican border to Atlanta back and forth many times. The people that he was carrying into Atlanta had large duffel bags with them, and it turns out they had a lot of cocaine in those duffel bags. And then when they would distribute it in Atlanta, they would load it back up with cash, take it back to the Mexican border. Clearly those individuals were part of a drug conspiracy. But my client, even though he carried them into Atlanta, even though he flew them back and obviously helped them accomplish their unlawful plan, he didn’t know about it. He was simply told that what was in the duffel bags had to do with their work, was never given any indication that those duffel bags contained drugs. And so, while he actually helped them commit the offense, he wasn’t aware of the unlawful plan,. So he had no knowledge of the agreement, and the jury found him not guilty of all charges.
Another defense, and this is a little more complicated, is that the person may be involved in the drug business, but it’s a different conspiracy than the one the government has charged him with in the indictment. When the government charges someone, they draft an indictment, and that’s agreed to by the grand jury, and then the government is stuck with that document. So when they go to trial, if they don’t prove exactly what’s in that indictment, then the jury cannot find the person guilty. So let’s say they go to trial. They have evidence that an individual is involved in the drug business, but they have charged him with a bunch of people that he didn’t know. Well, in that case the government may have shown that he’s involved in drugs, but he’s not a part of that conspiracy. It’s a different conspiracy, and so the jury has to find him not guilty.
Another defense, which is also a little complicated and difficult to use, is that the person withdrew from the conspiracy. At some point he knew about the plan, he agreed to get involved, and he helped out. But he realized down the road he did not wanna be a part of this, and so he said, “Look, you know, I’m done with this. I’m out.” That’s fine, but to really take advantage of this defense you have to communicate that to either law enforcement, or make it clear to everybody else in the conspiracy. And even if you do that, it only protects you going forward. It doesn’t protect you from what you may have done with that group in the past.
The entrapment defense. We get a lot of questions about the entrapment defense. Will it apply in my case? You know, “The government came after me. I didn’t go after them. They tried to sell me drugs. They tried to get me involved in this conspiracy.” The entrapment defense is a very effective defense when it’s used the right way and by a lawyer who knows what he or she is doing. In entrapment, you basically have to show two things. Number one, the person was not predisposed at being involved in a drug conspiracy. They don’t have a history of it, there’s not other evidence to show they were interested in finding out about the drug business. They had nothing to do with drugs until the government came along, either an undercover agent or an informant, and they went after this individual and tried to convince them to get involved. So it’s lack of predisposition, and it’s that second thing, the government conduct. They kept on after the person. Perhaps they made a call and suggested a drug deal, and he turned them down but they came back again. If you have those two elements, then you have an entrapment defense, and it’s a very effective defense in trial.
Finally, challenging an unlawful search or a wiretap. You need to consider that in almost any drug case there’s usually going to be a search. Somebody’s house was searched, somebody’s car was searched, a storage shed, a business. In some cases, the government will have a warrant, in some cases they won’t. Sometimes they’ll say they had consent to search, the person agreed to it, but they really didn’t. The way to challenge that is by filing a motion early in the case, getting a hearing, and then showing the judge that the search was unlawful. We’ve done that in many cases, and usually because the evidence that they find during the search is so important, if we can keep that out, the case will be dismissed.
We’ve also been successful suppressing wiretaps, and we see wiretaps now in almost every drug case. They’ll be recording the conversations that people in this alleged conspiracy have, then they will use those tapes against them in court, but they have to do it the right way. We’ve been able to throw out two cases based on improper wiretaps. In the first one, they didn’t have enough probable cause to get the wiretap. Even though a judge signed off on it, the judge that handled the case said, “I don’t think there was sufficient probable cause here.” They suppressed the wiretaps, they couldn’t use them in trial. And then once the government realized that, they dismissed the case. In another situation, another wiretap case, the government had probable cause to get the wiretap but they didn’t follow the specific requirements of the statute. They didn’t seal the recordings like they were supposed to. Again, a federal judge threw out those wiretaps and we were able to resolve the case.
These are some defenses. There are others, it all depends on the specific facts of the case. But those are the basic elements and defenses involved in a federal drug conspiracy charge. If you or someone you know is facing a charge like this, I hope this has answered some of your questions. But if you have other questions, feel free to give us a call.”
Drug Trafficking Charges and Penalties in Georgia
Under Georgia law, it is illegal to possess, manufacture, deliver, distribute or possess with intent to distribute any controlled substance (O.C.G.A. § 16-13-30). A controlled substance is a drug, an immediate precursor or essential compound used to make a drug, or marijuana. The penalty for violating this statute depends on the type, the schedule the drug falls under, and amount of the drug. Furthermore, for larger quantities of certain types of drugs, a person may also be charged with drug trafficking (O.C.G.A. § 16-13-31).
What are Drug Possession and Trafficking Charges?
Under Georgia law, there are five different “schedules” or groups of types of drugs. Some are truly illegal (like heroin) and some are legal with a valid prescription from a doctor. Punishment for possessing or distributing Schedule I drugs is the most severe. The most common drugs in each schedule are as follows:
- Schedule I (C.G.A. § 16-13-25) consists of substances that are considered highly addictive, have no accepted medical use, and lack accepted safety for use under medical supervision. There are hundreds of substances and chemical compounds listed in Schedule I. A few of the most common are ecstasy, heroin, LSD, morphine, China White, and marijuana.
- Schedule II (C.G.A. § 16-13-26) consists of substances that have a high risk of abuse, have limited use with severe restrictions, and have a severe risk of leading to psychological or physical dependence. Schedule II contains drugs classified as narcotics and non-narcotics. Common examples of non-narcotics are amphetamines (Dexedrine, Adderall), methamphetamine, and Ritalin. Examples of Schedule II narcotic drugs are hydromorphone (Dilaudid), methadone (Dolophine), meperidine (Demerol), oxycodone (OxyContin, Percocet), and fentanyl (Sublimaze, Duragesic), morphine, opium, codeine, and hydrocodone.
- Schedule III (C.G.A. § 16-13-27) consists of substances that have an accepted medical use, a potential for abuse, and abuse of the drug may result in a low physical dependence or high psychological dependence. Common examples are Tylenol with codeine, ketamine, some anabolic steroids, Suboxone, and testosterone.
- Schedule IV (C.G.A. § 16-13-28) consists of substances that have a low potential for abuse relative to Schedule III drugs, have accepted medical use, and abuse may result in limited physical or psychological dependence. Common examples are Xanax, Soma, Valium, Ativan, Ambien, Klonopin, and Tramadol.
- Schedule V (C.G.A. § 16-13-29) consists of substances that have a low potential for abuse relative to Schedule IV drugs, have accepted medical use, and abuse may result in limited physical or psychological dependence. Some common examples are Lomotil, Lyrica, Motofen, and Parapectolin.
O.C.G.A. § 16-13-30 makes it illegal for a person to possess, purchase, or have under their control any controlled substance. It is also illegal to manufacture, deliver, distribute, sell, or possess with intent to distribute any controlled substance (with limited exceptions). The terms possess, purchase, and deliver all have their ordinary every day meaning. Manufacture means the production, preparation, compounding, conversion, or processing of a controlled substance by extracting components of a substance’s natural origin or by chemical synthesis. The punishment for a controlled substance offense depends on whether the drug was only possessed or if it was manufactured or distributed, type of substance, and the weight of the substance. Furthermore, possession of larger quantities of certain types of drugs (such as cocaine, opium, heroin, marijuana, and methamphetamine, to name a few) allows the presumption that the drugs were being trafficked which comes with much harsher punishment.
A person, if convicted, who purchases or possesses either a Schedule I or narcotic Schedule II drug is guilty of a felony and may be punished by imprisonment for 1-3 years (if less than 1 gram), 1-8 years (if more than 1 gram but less than 4 grams), or for 1-15 years (if more than 4 grams but less than 28 grams).
However, if the possession is 4-28 grams or more of opium, heroin, morphine, or several other substances under Schedules I and II, the punishment is much more severe. In that case, it is considered drug trafficking under Section 16-13-31 and the punishment is as follows: mandatory 5-year minimum imprisonment if the quantity is more than 4 but less than 14 grams and a $50,000.00 fine; mandatory 10 year minimum imprisonment if the quantity is more than 14 but less than 28 grams and a $100,000.00 fine; and mandatory 25 year minimum imprisonment if the quantity is more than 28 grams and a $500,000.00 fine.
A person who purchases or possesses a non-narcotic Schedule II drug can be punished by imprisonment for 1-3 years (if less than 2 grams), 1-8 years (if more than 2 grams but less than 4 grams), or for 1-15 years (if more than 4 grams but less than 28 grams).
A person convicted of manufacturing, delivering, distributing, selling or possessing with intent to distribute a Schedule I or Schedule II drug may be punishment by 5 to 30 years imprisonment if it is the person’s first offense. If convicted of a second or subsequent offense, he may be imprisoned for 10 to 40 years.
A person convicted of possessing a drug in Schedule III, IV, or V may be imprisoned for 1 to 5 years. The punishment for trafficking or distributing drugs in any of these schedules is 1 to 10 years imprisonment.
With respect to marijuana, it is illegal for a person to possess, have under their control, deliver, distribute, dispense, or possess with intent to distribute marijuana. As a general matter, possession of less than 1 ounce of marijuana is a misdemeanor (O.C.G.A. § 16-13-2). Possession of more than 1 ounce is a felony punishable by 1 to 10 years imprisonment. However, under O.C.G.A. § 16-13-31(c), if a person possesses, grows, brings into the state more than 10 pounds of marijuana, it is considered trafficking. If the quantity of marijuana is is more than 10 pounds but less than 2,000 pounds, a person faces a mandatory minimum 5 years imprisonment and a $50,000.00 fine. If caught with 2,000 pounds or more but less than 10,000 pounds of marijuana, a person faces a mandatory minimum of 7 years imprisonment and a $250,000.00 fine. If there is 10,000 pounds or more of marijuana, the person faces a mandatory minimum of 15 years imprisonment and a $1 million fine.
While the above-listed sentences are mandatory minimum sentences, there are three different ways a defendant can be sentenced to less than the mandatory minimum. First, the District Attorney can file a motion asking the sentencing court to reduce or suspend a sentence if the defendant provides substantial assistance in the identification, arrest, or conviction of any other individuals involved in the drug operation. Second, the sentencing court may use its own discretion to depart from a mandatory minimum sentence if the defendant was not a leader in the drug operation, if the defendant did not possess a weapon, the criminal conduct did not result in a death or serious bodily injury, the defendant has no prior felonies, and the interests of justice will not be served by applying the mandatory minimum sentence. Third, the sentencing court may depart where the District Attorney and the defendant have agreed to a sentence that is below a mandatory minimum sentence.
Defenses Against Drug Possession and Trafficking Charges
There are several viable defenses available to a person charged with drug possession. A few common defenses include:
- Another person had equal access to the drugs. This defense often arises in the automobile context. A person may raise this defense if he can prove that others had equal access to the vehicle where drugs were found or the vehicle had recently been used by others. If the person’s access to or ownership of the vehicle is the only evidence, he can raise the defense of equal access.
- A person had a lawful prescription for the drugs. This would only apply to those controlled substances that can lawfully be prescribed by a doctor. If it can be proven that the accused had a valid prescription and the prescription was written for and filled by the person in possession of the prescription, the accused has a viable defense.
- The accused was simply present at the time of a drug transaction but did not participate. There is a general rule that merely being present at the scene of a crime is not enough to establish a person actually participated in a crime. Where a person did not assist in obtaining drugs, set up a meeting to exchange drugs, or have knowledge that the purpose of the meeting was a drug transaction, he may be able to defend against drug charges by asserting he was merely present, not involved in the illegal activity.
The information provided above is a very general summary of Georgia drug trafficking and possession law at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.
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