GA Code § 16-13-30.2 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 13 - Controlled Substances|Article 2 - Regulation of Controlled Substances|Part 1 - Schedules, Offenses, and Penalties|§ 16-13-30.2. Unlawful Manufacture, Distribution, or Possession With Intent to Distribute of Imitation Controlled Substances; Civil Forfeiture

  Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.1) of Code Section 16-13-21 is guilty of a misdemeanor of a high and aggravated nature.   The provisions of this Code section are cumulative and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party.   No civil or criminal liability shall be imposed by virtue of this Code section on any person registered under this article who manufactures, distributes, or possesses an imitation controlled substance for use by a practitioner, as defined in paragraph (23) of Code Section 16-13-21, in the course of lawful professional practice or research.   All materials which are manufactured, distributed, or possessed in violation of this Code section and any proceeds are declared to be contraband and no person shall have a property right in them and shall be forfeited according to the procedure set forth in Chapter 16 of Title 9. As used in this subsection, the term "proceeds" shall have the same meaning as set forth in Code Section 9-16-2.     (Code 1981, §16-13-30.2, enacted by Ga. L. 1988, p. 1065, § 2; Ga. L. 2015, p. 693, § 2-17/HB 233.)   Editor's notes.   - Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."   Law reviews.   - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U.L. Rev. 519 (2005).   JUDICIAL DECISIONS   Applicability.    - Defendant was erroneously convicted of felony selling a non-controlled substance under O.C.G.A. § 16-13-30.1(a)(1)(A) where the subject conduct also violated O.C.G.A. § 16-13-30.2, which makes it a misdemeanor to possess or distribute an "imitation controlled substance"; the state improperly prosecuted defendant for violating the statute with the greater penalty rather than the one with the lesser penalty. Brown v. State, 276 Ga. 606, 581 S.E.2d 35 (2003).    This section not lesser included offense of Code Section16-13-30.1. - O.C.G.A. § 16-13-30.2 cannot be considered a lesser included crime of O.C.G.A. § 16-30-30.1 under the required evidence test because the plain language of § 16-13-30.2 requires proof of a fact not required for a conviction under § 16-13-30.1. State v. Burgess, 263 Ga. 143, 429 S.E.2d 252 (1993).    Conduct of selling is subsumed in the expressly prohibited activity of distributing and therefore constitutes a violation of O.C.G.A. § 16-13-30.2. Dorsey v. State, 212 Ga. App. 479, 441 S.E.2d 891 (1994).    Undercover deputies' possession of wax pieces of fake cocaine to identify and arrest drug buyers did not violate prohibition against possessing imitation controlled substance with intent to distribute. Guzman v. State, 206 Ga. App. 170, 424 S.E.2d 849 (1992).   Evidence insufficient for conviction.    - When a federal chemist testified that, although the chemist thought the green leafy material was marijuana, the chemist did not test the substance, so the chemist could not testify beyond a reasonable doubt that the substance was marijuana, and since no scientifically conclusive evidence was presented at all, a conviction for possession of marijuana with intent to distribute could not stand. Adkinson v. State, 236 Ga. App. 270, 511 S.E.2d 527 (1999).   Rule of lenity did not apply.    - Rule of lenity did not apply to a defendant's conviction of felony possession with intent to distribute a noncontrolled substance, O.C.G.A. § 16-13-30.1, because the evidence did not show that the substance at issue was an "imitation controlled substance" for purposes of misdemeanor unlawful manufacture, distribution, or possession with intent to distribute an imitation of controlled substances, O.C.G.A. § 16-13-30.2; although the noncontrolled substance at issue was in common packaging for narcotics, the evidence did not show that the substance appeared as a "dosage unit" based on color, shape, size, or markings or was specifically designed or manufactured to resemble a controlled substance. Therefore, the evidence failed to establish that the defendant's conduct fell within § 16-13-30.2(a). Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252 (2009).   Rule of lenity did not apply to conviction for imitation controlled substances.    - Trial court did not err by refusing to apply the rule of lenity with regard to a defendant's conviction for selling a counterfeit substance because the evidence revealed that the substance would not fall under either definition of "imitation controlled substance" set forth in O.C.G.A. § 16-13-21(12.1)(A) as the parties stipulated only that the substance recovered was not a controlled substance and there was no evidence presented that the substance was specifically designed or manufactured to resemble the physical appearance of a controlled substance. As a result, the rule of lenity did not apply, and the trial court properly sentenced the defendant for a felony. Chandler v. State, 294 Ga. App. 27, 668 S.E.2d 510 (2008).   RESEARCH REFERENCES   ALR.   - Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.   Validity, construction, and effect of state statute regulating sale of counterfeit or imitation controlled substances, 84 A.L.R.4th 936.