Drug cases give rise to many issues, and many possible defenses and results. These cases can range
from possession for personal use of a substance, to possession for purposes of sale, to drug trafficking, and manufacturing,
to attempted possession. In Georgia drug offenses are known as Violations of the Georgia Controlled Substances Act, or VGCSA,
and are specified in Title 16 of the Georgia Code. If you are convicted of almost any drug offense, Georgia law requires the
suspension of your driver's license. However Georgia law (O.C.G.A. 40-5-76) also provides that a judge presiding
in a drug court division, mental health court division, or veterans court division may order the Department of Driver Services
(DDS) to restore a defendant's driver's license that has been or should be suspended, or suspend such license, or issue
a limited driving permit with whatever conditions the court determines to be appropriate under the circumstances as a reward
or sanction to the defendant's behavior in such court division. Further, a judge presiding in regular criminal or municipal
courts, may order the DDS to restore a defendant's driver's license that has been or should be suspended, or issue a limited
driving permit if the offense for which the defendant was convicted did not directly relate to the operation of a motor
vehicle. However, such judge also has the power to order the DDS to suspend a defendant's driver's license that could
have been suspended pursuant to Code Section 40-5-75 as a consequence of the defendant's violation of the terms of his or
Possession of an ounce or more of cocaine, methamphetamine, heroine, ecstacy, "Molly",
etc., is considered not merely possession but drug trafficking. Upon conviction of drug trafficking, the trial judge
is required to sentence the defendant to a mandatory and extremely severe prison sentence. Thus, it is important to consult
a Georgia criminal lawyer to explore all possible defenses, reduction of charges (plea bargaining) as well as the several
alternatives detailed below.
On the other hand, the 2012 Sentencing Reform Act, HB1176, has greatly decreased
the maximum penalty of imprisonment for possession of less than one gram of certain drugs to three years or less. Less
than one gram is considered a "residue" case, such as when an individual is arrested for possession of a previously
smoked, burned out crack or meth pipe, or crumbs of the substance. Practically speaking, this means an individual arrested
for several grams of illegal drugs can, under the right circumstances, plea bargain his or her case to a guilty plea of less
than one gram of drugs and therefore a lesser maximum sentence. This would be particularly valuable if the individual wanted
to take advantage of Georgia's conditional discharge or first offender statutes. Further details regarding this possible disposition
involve quite a bit more explanation and are beyond the scope of this presentation but are worth further discussion with us.
Motions to Suppress
Usually the strongest evidence
(and thus the most important for the prosecution) is the drugs themselves. Therefore, the first goal of the defense is the
possible suppression of this evidence. This would prevent the drugs from being used as evidence against the accused in court.
A motion to
suppress evidence is based upon the idea that evidence has been illegally obtained as the product of a search or seizure,
that violates the U.S. Constitution, the Georgia Constitution, or both. The trial court decides this issue after a hearing
wherein the criminal defense lawyer questions the officers or other witnesses involved in the case, and argues to the trial
court why the evidence should be suppressed. If this motion is successful, it often cripples the State's case and may result
in dismissal of the charges.
There are different laws that govern whether or not a search is illegal, depending upon what is searched and who
does the searching. For example, the law recognizes a greater expectation of privacy in a person's house, as opposed to a
person's car. This is because cars and their contents are exposed to the public, and because of their mobility. An experienced
Georgia criminal defense lawyer can spot these issues, analyze them properly, and make a forceful argument on your behalf
The police sometimes try to take away or "seize"
from the defendant, materials considered tools or rewards of the drug trade in what is called a forfeiture action. This can
include cars, homes, cash, phones, boats, and any other asset. A skilled criminal defense attorney can work to protect assets
from forfeiture. Further, depending on the circumstances, these items can also be used as a bargaining chip with the prosecution
in regards to a more favorable disposition of the criminal drug case.
Trial courts throughout Georgia now recognize
that treatment and rehabilitation is far more appropriate than jail or prison in helping people deal with a drug problem.
If you have been arrested for a drug-related offense, there are different treatment options, each with its own advantages
and disadvantages. Depending on the circumstances of the case, alternatives to jail, prison sentences, or convictions, can
include Diversion, Pretrial Intervention (PTI), Drug Court, First Offender, Work Release, and Conditional Discharge. Each
of these choices has different requirements for successful completion and the accused may be eligible for one or more of these
alternatives. These alternatives almost always require drug counseling and random screens, and sometimes include several months
of residential rehabilitation treatment, community service, fines or fees, and letters of recommendation. A knowledgeable
criminal defense attorney who cares about your personal situation will be able to help you determine what alternaves are available
and which option is best.
A drug court is a
special court given the responsibility of handling cases involving drug abusers through a demanding and extensive supervision
and treatment program. Many Georgia counties have not yet instituted a drug court program. The specifics of the programs that
do exist will vary from county to county. However each program will typically be separated into phases, where the participant
will earn more freedoms with the passage of time and successful completion of the preceding phase. Sometimes a period of incarceration
is required. Also if a participant violates a drug court rule, say by having a positive drug screen (illegal drugs or alcohol
in body), that participant could be punished by a few days in jail, being held back a stage in the program, or being expelled
from the program. However, in some counties and situations, when the participant successfully completes the program, the case
will be dismissed. Thus, there are pros and cons to sentencing alternatives and to drug court. In fact, some of these alternatives
can be quite difficult and result in high drop out rates. If you or someone you care about has a drug case, please contact
the Law Offices of Bert W. Cohen for a no cost, no obligation, confidential consultation.
Law Offices of Bert W. Cohen 321 Lawrence Street Marietta, Georgia 30060 In Metro Atlanta: (770)422-5101.