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How are Opioids Classified under Georgia Law?
Opioids are a class of drugs that include the illegal drug heroin, synthetic opioids such as fentanyl, and pain relievers available legally by prescription, such as fentanyl, oxycodone, OxyContin, hydrocodone, Vicodin, codeine, morphine, opium and others. Opioid drugs bond with opioid receptors on cells in the body and brain to offer pain relief. Opioid drugs can also produce euphoria and are classified as Schedule I and Schedule II controlled substances with the potential for great abuse.
Heroin is a schedule I (1) controlled substance under Georgia law. Opium, fentanyl, morphine, codeine, oxycodone, OxyContine, hydrocodone, and Vicodin are all Schedule II (2) controlled substances under Georgia law. ,
The Punishment for Possession of Different Opioids in Georgia
It is first important to remember that an arrest is not the same as a conviction. Just because your are arrested, does not mean you are going to be convicted and punished. Having an experienced Georgia Possession of Opioid defense attorney is going to be your best defense in protecting your freedom.
All opioid possession convictions are felonies under Georgia law. The punishment for convictions of Schedule I and II controlled substances is determined by weight.
Heroin is a Schedule I controlled substance. Less than 1 gram has a sentencing range from 1 to 3 years. More than 1 gram to less than 4 grams has a sentencing range of 1 to 8 years. If you are found to be possessing 4 grams or more of Heroin, the charge will change from possession of Heroin to Trafficking Heroin.
Trafficking Heroin also has a varying length of sentence based on weight. From 4 to 13 grams the sentencing range is at least 5 years and a $50,000 fine. From 14 grams to 27 grams at least 10 years and a $100,000 fine. And 28 grams or more is a minimum 25 year sentence and a fine of $500,000.
Schedule II opioids such as oxycodone, OxyContin, hydrocodone, Vicodin, codeine, morphine, opium and others carry the same punishments for possession, except for some of the schedule II substances do not become trafficking offenses at 4 grams. Morphine and opium are also trafficking offenses at 4 grams but the others become trafficking offenses at 28 grams. Possession of 4 to 28 grams of codeine, hydrocodone, oxycodone, Vicodin, and OxyContin is punishable by a sentence of 1 to 15 years in custody.
You can also be charged with possession with intent to distribute opioids in Georgia if you have less than a trafficking amount on your possession and the State has additional evidence that leads them to believe that you intended to sell or distribute the opioids in your possession. A conviction for Possession with intent to Distribute opioids in Georgia carries a sentencing range from 5 to 30 years.
Defenses to Possession of Opioids in Georgia
I Did Not Have Possession of the Opioids
In order to be convicted of possession of opioids in Georgia, the prosecutors for the State of Georgia must prove beyond a reasonable doubt you have possession of the substance. Georgia law recognizes two types of possession in these circumstances: actual possession and constructive possession. Actual possession means you have direct physical control of the drug at any given time. It is either on your person or in arms reach where you can exercise control of the drug at any given time. Constructive possession means the drugs are not on your person or within arms length but you have knowledge of the drugs and the ability to exercise dominion or control over them. Constructive possession is a legal creation, and has many possible defenses that an experienced Atlanta opioid possession defense attorney will help you identify.
The Drugs Were Found as the Result of an Unlawful Search and/or Seizure
Any illegal substance that is found as the result of an unlawful search or seizure must be suppressed as evidence under the Constitution and Laws of the State of Georgia and the United States Constitution. If the drugs were found on your person, in your car, or in your home, the police must have probable cause to search you, your car, or your home. The 4th amendment of the United States Constitution protects the people in this country from those unlawful searches and seizures and any contraband obtained through an unlawful search or seizure will be deemed to be fruit of the poisonous tree and suppressed as evidence.
They’ve Got the Wrong Person
In order to be convicted of a crime, the State of Georgia must prove beyond a reasonable doubt that it was you that possessed the drugs. Identification is a necessary part of every trial and is established through witness testimony. Both the State’s witnesses and your witnesses can assist in establishing whether you were the person who possessed the drugs that are the subject of your case.
I’ve Got a Valid Prescription or They Belong to Someone with a Valid Prescription
Some opioids are prescribed lawfully. If you have a valid prescription for the drugs for which you are being charged, proof of that valid active prescription is a defense to your possession charge. Also, if you are carrying a prescription for someone else like a close family member, caretaker, or legal guardian, that may also be a defense to your opioid possession charge.
Pre-Trial Diversion, Conditional Discharge, and First Offender Options for Opioid Possession in Georgia
Georgia law offers a few options for those charged with drug offenses to resolve their case by getting the charges dismissed without risk of trial. These options are not available in all situations, but are available in most jurisdictions in the State of Georgia depending on your criminal history and specific charge.
Pre-Trial Diversion is often an option for misdemeanor marijuana offenses and simple possession charges if you have never been arrested before. This does not necessarily mean no charges on your criminal history, but usually means the first time you have ever been arrested, even if that arrest has been expunged or restricted. Diversion often involves classes, community service, clean screens, and a program fee. Depending on the specific charge, there could be additional requirements. Someone accused of committing a drug offense in Georgia has no right to diversion under Georgia law. Diversion programs are usually managed by the prosecuting office, and once the terms of the program are successfully completed, the prosecuting office will dismiss your charges in court.
Conditional Discharge is an option available to all eligible citizens under Georgia law. The conditional discharge statute, O.C.G.A. 16-13-2 is available to anyone accused of committing a drug possession offense in Georgia who has never been previously convicted of any drug charge in any state or by the United States. Conditional discharge requires a defendant to enter a plea, and upon successful completion of their sentence their case will be dismissed and their arrest record will be restricted under Georgia law. Conditional discharge is not eligible for possession with intent to distribute or trafficking charges. And it may not be an option if you have used a similar program in another state.
The last option you have to resolve your drug charge is through a first offender plea. The Georgia First Offender statute, O.C.G.A. 42-8-60 is eligible to possession, possession with intent, and trafficking charges under Georgia law. It is eligible to any person who has never been convicted of a felony at the time of their plea. If first offender treatment is granted, the court will sentence the defendant, withhold entering the sentence, and after successful completion of the sentence, the defendant’s conviction will be dismissed and their record will be restricted. However, if the defendant does not complete their sentence, the Judge has the ability to revoke the defendant’s first offender sentence and re-sentence them to the maximum punishment provided under the law. First offender has great benefit, but also involves substantial risk if the person does not successfully complete their sentence.
If you or a loved one has been charged with possession of opioids in Georgia it is important to understand your rights and speak with an experienced Georgia opioid possession defense lawyer. If you would like to discuss Georgia laws on possession of heroin, fentanyl, Oxycontin, Vicodin, codeine, oxycodone, or morphine, call, text, or e-mail today for a free consultation and we will go over all your rights and defenses under Georgia law.