Possession of Drugs with Intent to Distribute in Georgia

Possession of Drugs with Intent to Distribute in Gwinnett County Georgia

Almost all drug crimes are treated severely under Georgia criminal law, especially those involving substances that are classified as the most harmful. In some cases, simple drug possession may even incur a longer prison sentence than certain violent crimes in the state.

Possession of drugs and possession of drugs with intent to distribute are two separate crimes here—with the latter usually involving harsher penalties.

If you’ve been charged with any drug offense, a conviction will likely result in ramifications for the rest of your life. It is essential, therefore, to seek legal advice about your options. Here’s what else you need to know about the possession of drugs with intent to distribute in Georgia…

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What is drug possession with intent to distribute in Georgia?

Under the Georgia Criminal Code, § 16-13-30, it is a criminal offense for any individual to:

  1. purchase, possess, or have under his control any controlled substance.
  2. manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.

Drug possession with intent to distribute falls under section b) of the above summary.

Drug classifications in Georgia

Drugs are classified by the Georgia Code according to five schedules ranging from Schedule I (the most serious) to Schedule V (the least serious).

The following table outlines the schedules associated with some of the substances most commonly found on Georgia’s streets:

Drug Classification Substance
Schedule I Heroin, peyote, LSD, GHB, ecstasy, and hallucinogenic mushrooms
Schedule II Raw opium, morphine, oxycodone, cocaine (including crack cocaine), fentanyl, methadone, and methamphetamines
Schedule III Some steroids such as testosterone and ketamine
Schedule IV Clonazepam, diazepam, and phenobarbital
Schedule V Drugs that have low levels of codeine, opium, and ethylmorphine

Note that Schedule I drugs are considered the most addictive and have no medical use. Schedule II drugs are less addictive but are still heavily abused. Schedule IV and V drugs are considered to have the lowest potential for abuse, limited potential for dependence, and accepted medical use.

Note too that marijuana, though not detailed in the above table, remains a controlled substance in Georgia and possession or possession with intent to distribute the substance is a criminal offense here. On May 16, 2024, the U.S. Drug Enforcement Agency proposed a Rule that would downgrade Marijuana from a Schedule I controlled substance to a Schedule III controlled substance.

How to prove “intent to distribute drugs” in Georgia

The prosecution will first need to prove that the defendant possessed a controlled substance. The possession can be actual or constructive.

Active possession means that the defendant had physical control over or immediate access to the controlled substance. Constructive possession means that the person knowingly had both the power and the intention to exercise control over the drugs. To prove this, the State must establish a link between the suspect and the drugs; the drugs simply being located nearby is not sufficient proof.

However, in these cases, possession alone is not enough for a conviction of possession of drugs with intent to distribute. The prosecution must also prove beyond a reasonable doubt that the suspect had the intent to distribute the controlled substance in order to achieve a conviction. This can be more challenging and usually depends on the quantities of drugs involved and the circumstances in which they were found. Some of the circumstances that could lead to a possession with intent to distribute charge: the amount of cash present, the type of denominations present, the packaging of the substance, and the presence of scales.

What are the penalties for drug possession with intent to distribute in Georgia?

The penalties for drug possession with intent to distribute depend on the class of drugs involved and the criminal history of the defendant—but leniency for drug crimes is in short supply in Georgia.

For a first offense of Possession with Intent to Distribute a Schedule I or II drug, the crime is treated as a felony with a sentence of between 5 and 30 years in prison. A second and subsequent offense will result in a prison term of 10 to 40 years in prison (or life).

Possession with intent to distribute a Schedule III, IV or V drug generally incurs a sentence of between one and 10 years in prison. The main exception is Rohypnol (sometimes called the “date rape” drug, or by its generic name flunitrazepam), which for sentencing purposes, is treated like a Schedule I or II drug.

Aggravating circumstances can extend penalties. For instance, engaging someone under the age of 17 to distribute or otherwise assist with controlled substances or possession with intent to distribute within 1,000 feet of school grounds, a park, a housing project, or in a drug-free zone will be treated as a felony punishable by up to 20 years in prison and/or a hefty fine for the first offense.

Other than a dismissal, not guilty verdict, or fatal error in the prosecution, the main alternatives to a conviction include First Offender Act sentencing or Conditional Discharge (so long as the sentence is five years or less), or a pre-trial diversion (PTD) program.

What are possible defenses to drug possession with intent to distribute?

With a charge of possession of drugs with intent to distribute, a seasoned criminal defense lawyer will investigate the case against the defendant and usually base the defense on one of the following:

  • Lack of intent: Without evidence of intent to distribute the controlled substance, a conviction for this offense cannot be achieved. A lawyer can sometimes create the doubt that the substance was for personal consumption, a viable defense especially if the defendant has never distributed drugs before.
  • Unlawful actions by law enforcement: if the police conducted an unlawful stop, detention or search and violated the defendant’s constitutional rights when the drugs were discovered, this can greatly weaken the prosecution’s evidence and result in case dismissal.
  • Factual innocence: the defendant didn’t possess the drugs as claimed or the substance discovered was, in fact, legal.
  • Low quantity of drugs (not enough to distribute): if the quantity of drugs seized was low, the prosecution is more likely to accept the “personal use” argument and agree to a lesser charge.
  • Private residence: if the evidence was found at a private residence rather than a subsidized housing (sometimes called a “housing project”), park, or other public place, some prosecutors may be more likely to agree to a lesser charge.

Defendants in cases of drug possession with intent to distribute typically are unsuccessful in claiming a lack of knowledge that the substance was controlled as a defense. It should also be noted that in the case of intent to distribute drugs on school property, it is irrelevant whether the school was in session at the time.

What quantity of drugs results in trafficking charges in Georgia?

The state of Georgia sets different limits for different drugs across the various schedules of drugs.

With cocaine, for instance, a trafficking charge depends on the quantity and purity of the substance. For cocaine with a purity of 10 percent or more, having more than 28 grams in your possession could result in a trafficking charge.

However, many different examples apply and it’s best to discuss this with your criminal defense lawyer when the facts of your case are considered.

Contact the Law Office of Adam D. Brown, LLC Today

If you’ve been charged with possession of drugs with intent to distribute, speak to Adam D. Brown.

After evaluating the details of your case, we will advise you of the best legal strategy and walk you through the process. Call 404-883-8893 for a case evaluation.

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