Defending Marijuana Cases In Cobb County And In The Atlanta-Metropolitan Area
Marijuana Cases Can Either Be A Misdemeanor Or A Felony
I have heard some of my clients assume marijuana cases can only be charged as misdemeanors. The reality is that state law still prohibits the possession, sale or distribution of marijuana in Georgia. Whether it is charged as a misdemeanor or a felony comes down to two factors: 1) how much marijuana was seized; and 2) whether a person was charged with simple possession or with possession with intent to distribute (selling marijuana).
The Misdemeanor Offense
Misdemeanor possession of marijuana is codified in Georgia Code 16-13-2(b), which states that possession of one ounce or less of marijuana shall be a misdemeanor and carries a sentence range of up to 12 months in custody or on probation, a fine of up to $1,000.00, or both.
The Felony Offenses
A possession of marijuana charge can be a felony depending on the weight of the marijuana that was possessed. Georgia Code 16-13-30(j) says it is unlawful for a person to possess or have under his control marijuana. If someone possesses more than one ounce or less than ten pounds of marijuana, it is a felony punishable by not less than one year nor more than ten years in prison or on probation, a fine of up to $100,000.00, or both.
Selling marijuana is also a felony. Georgia Code 16-13-30(j) says it is unlawful for a person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute marijuana. It does not matter the amount of marijuana in this type of case. A conviction carries a sentence range of one to ten years in prison or on probation, a fine of up to $100,000.00, or both.
Trafficking Marijuana Carries Much Harsher Penalties
Trafficking marijuana cases are very serious and should be dealt with swiftly. They involve greater amounts of marijuana, and consequently carry much harsher criminal penalties.
The Trafficking Marijuana Offense
Georgia Code 16-13-31(c) states that any person who sells, manufactures, grows, delivers, brings into this state, or has possession of marijuana: 1) more than ten pounds but less than 2,000 pounds the sentence shall be a mandatory minimum term of imprisonment of five years and a fine of $100,000.00; 2) 2,000 pounds or more but less than 10,000 pounds the sentence shall be a mandatory minimum term of imprisonment of seven years and a fine of $250,000.00; 3) 10,000 pounds or more the sentence shall be a mandatory minimum term of imprisonment of 15 years and a fine of $1 million.
How Can They Charge Me With Possession If Nothing Was Found On Me?
As with any type of case, there may be certain factual and legal defenses available. The question of possession is but one of many possible defense that may be present. To prove possession, the State must prove two things: first, they must prove that a person knowingly intended to possess the item (intent); and second, that the person committed the act of possessing the item.
Actual vs. Constructive Possession
The issue of possession can be further broken down into two additional categories: actual possession and constructive possession. Actual possession means exactly what it sounds like. If the police find some marijuana in a person's pocket, that person had actual possession of the marijuana. Constructive possession is a bit more nuanced. It means you have control and dominion over an item without being in actual possession of it. For example, consider a scenario where a car is pulled over and marijuana is found in the center console, directly between the driver and the passenger. While neither are in actual possession of the marijuana, both can arguably have constructive possession since both had access to the marijuana in the center console.
The Police Searched My Car Without My Permission And Found Marijuana. Can They Do That?
Answering this question with the depth it deserves could fill multiple 1000-page textbooks. For the purpose of this discussion, however, it is important to know that any search done without a warrant is presumed to be unlawful. However, there are of course many exceptions to this general rule. Consent, a search incident to a person's arrest, and the “plain view” doctrine are but a few. However, Georgia courts have consistently held that if a police officer detects the odor of marijuana during a traffic stop, that gives the officer sufficient probable cause to search the vehicle. Throughout my career, I have found that this is the most common reason for law enforcement to search a vehicle in marijuana cases.
Why Are They Charging Me With Selling Marijuana? I Just Possessed It.
Another common question. Each case will have its unique circumstances detailing how and why one of my clients has been charged with possession with intent to distribute. Many factors come into play, and sometimes it is one factor or a combination of factors that dictate a charging decision. Some examples of these factors are: how much marijuana was seized, whether there was additional contraband found, like digital scales and baggies, whether the marijuana was located in separate bags, and whether there was a large amount of cash also seized. All or some of these factors can indicate to an officer whether a person may be involved in selling marijuana.