Possession of a Controlled Substance in Georgia

All states regulate the possession of controlled substances, though they can differ in their definition of controlled substances and penalties for possession. Georgia classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled substances but also the compounds used to manufacture them.

This article discusses the possession of controlled substances for personal use only. Possession of drugs for sale or distribution carries different penalties.

How Georgia Classifies Controlled Substances

Georgia classifies controlled substances into five schedules (I to V), according to their potential for abuse and accepted medical use. Schedule I lists the most dangerous drugs, which have a high probability of abuse and addiction, and no recognized medical value. Schedules II to V decrease in dangerousness and probability of abuse and increase in recognized medical uses.

Examples of drugs within each schedule are provided below:

• Schedule I includes heroin, MDMA (ecstasy), LSD, and psilocybin (magic mushrooms).
• Schedule II includes opium, morphine, codeine, oxycodone, amphetamines, fentanyl, hydrocodone, and cocaine.
• Schedule III includes anabolic steroids, central nervous system depressants and stimulants, and ketamine.
• Schedule IV includes diazepam, clotiazepam, zolpidem (Ambien), and tramadol.
• Schedule V includes medicines that contain very small amounts of specified narcotic drugs.

What Are the Penalties for Illegal Drug Possession in Georgia?

Georgia makes it illegal to possess, purchase, or have under one's control a controlled substance without a prescription from a licensed physician. Drug possession crimes are all felonies, except for those that involve small amounts of marijuana. Penalties vary according to the class and amount of the drug and whether the defendant has prior drug convictions.

Schedule I Drugs and Schedule II Narcotics

Possession of any schedule I controlled substance or schedule II narcotic constitutes a felony. These offenses carry the following penalties based on the amount of drugs possessed or purchased:

• less than 1 gram or milliliter: 1 to 3 years' incarceration
• 1 to 4 grams or milliliters: 1 to 8 years' incarceration, and
• 4 to 28 grams or milliliters: 1 to 15 years' incarceration. (This last penalty does not apply to morphine, heroin, opium, or select other substances. Possessing four grams or milliliters of these drugs is considered drug trafficking (see below).)

Non-Narcotic Schedule II Drugs and Flunitrazepam

A defendant charged with possession of flunitrazepam ("roofie") or any schedule II controlled substance other than a narcotic also faces a felony conviction. Penalties depend on the amount of the controlled substance involved as follows:

• less than 2 grams or milliliters: 1 to 3 years' incarceration
• 2 to 4 grams or milliliters: 1 to 8 years' incarceration, and
• 4 to 28 grams or milliliters: 1 to 15 years' incarceration (same penalty to 4 or more grams of flunitrazepam).

Schedule III, IV, or V Drugs and Marijuana

Any person who illegally possesses a controlled substance in Schedule III, IV, or V (with the exception of flunitrazepam) is guilty of a felony and subject to one to three years in prison.

An offender who possesses one ounce or less of marijuana commits a misdemeanor, punishable by up to one year of jail time and a $1,000 fine. Possession of more than one ounce can result in a felony conviction and one to 10 years in prison.

Repeat Drug Offenses

Georgia law allows for extended terms of imprisonment for defendants with prior felony convictions. Third or subsequent convictions for possession of a schedule I or II controlled substance carry imprisonment for up to twice the length of the sentence applicable to the particular crime. If the third or subsequent conviction is for an illegal drug from schedules III, IV, or V, the defendant faces one to five years' incarceration.

What Are the Penalties for Trafficking Illegal Drugs in Georgia?

Any person who possesses large amounts of controlled substances can face drug trafficking charges in Georgia, resulting in much harsher penalties than those listed above for simple possession. Below are just a few examples.

Cocaine or meth. A defendant guilty of having 28 grams or more of cocaine or meth faces a mandatory minimum term of imprisonment of 10 years and a $200,000 fine. If the amount involved is 400 grams or more then the punishment increases to a mandatory minimum of 25 years in prison and a $1 million fine.

Morphine, opium, and heroin. An offender guilty of having four grams or more of morphine, opium, or heroin faces a mandatory minimum term of imprisonment of five years and a $100,000 fine. If the amount involved is 28 grams or more, the punishment increases to a mandatory minimum term of 25 years in prison and a $500,000 fine.

Marijuana. Any person guilty of having more than 10 pounds of marijuana faces a mandatory minimum term of imprisonment of five years and a $50,000 fine. If the amount involved is 10,000 pounds or more, the punishment increases to a mandatory minimum term of 15 years in prison and a fine of $1 million.

What Are the Penalties for Possession of Drug Paraphernalia in Georgia?

Georgia also makes it illegal to possess and use drug paraphernalia—items used to ingest, inhale, inject, store, conceal, or weigh illegal controlled substances. Possession of drug paraphernalia constitutes a misdemeanor, which carries penalties of up to one year in jail and a $1,000 fine. Penalties increase for subsequent offenses.

Will You Serve Jail Time for Illegal Drug Possession in Georgia?

It's possible, especially given that most possession offenses are felonies. But Georgia law offers a few sentencing alternatives that could benefit first-time offenders and those charged with lower-level or nonviolent offenses.

First-Time Offenders: Conditional Discharge

Georgia law provides a special provision for first-time offenders. For defendants who have never been convicted of a controlled substance-related crime in Georgia or under any other law of the United States, the court can, with the defendant's consent, impose a period of probation and withhold a finding of guilt.

The judge may require the defendant to enroll in a drug treatment program. If the defendant successfully completes probation, the court will dismiss the underlying charges, and the defendant will not have a conviction on their record. However, if the defendant violates any condition of probation, the court can resume criminal proceedings by entering a finding of guilt and proceeding with sentencing.

Accountability Courts (Drug Courts)

The Georgia Legislature created the Georgia Accountability Court Program, which provides alternatives to sentencing for nonviolent drug offenders. Defendants who qualify for the program have the opportunity to receive treatment, counseling, and supervision rather than a lengthy term of incarceration.

Reducible Felonies

When a defendant is found guilty of a felony punishable by imprisonment for a maximum term of 10 years or less, Georgia law allows a judge to impose misdemeanor punishment. This is known as a reducible felony.

Possible Defenses to Drug Possession Charges in Georgia

Defendants facing controlled substance charges have several defense strategies available to them.

Actual innocence. Defendants charged with a drug-related crime have the usual defenses available to all criminal defendants, such as "someone else committed this crime," or "the Alleged conduct did not occur."

Lack of knowledge. Defendants can try to show the jury that they did not have knowledge of the controlled substance being in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of heroin under the hitchhiker's seat, the defense will argue the defendant had no knowledge of the bag hidden under their seat.

Unlawful search and seizure. A common defense in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether.

Amnesty law. The Georgia 9-1-1 Medical Amnesty Law provides that any person who is experiencing a drug overdose or someone rendering aid to the person should not be arrested, charged, or prosecuted for a drug violation if the evidence for such a charge resulted solely from seeking medical assistance.

Talk to a Lawyer

If you've been charged with a drug-related offense in Georgia, contact a local criminal defense attorney as soon as possible. A controlled substance conviction can become part of your permanent criminal record and negatively impact your ability to find employment or housing, as well as subject you to massive fines and lengthy incarceration time. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.

(O.C.G.A. §§ 16-3-5; 16-13-2, 16-13-25, 16-13-26, 16-13-27, 16-13-28, 16-13-29, 16-13-30, 16-13-31, 16-32-32, 17-10-3, 17-10-5, 17-10-7 (2023).)