Unintentional poisonings, mostly drug overdoses, are the leading cause of injury-related death in the United States. So, there is immense pressure on law enforcement to “do something” about this issue. Mostly because the cases are relatively straightforward and easier to prove in court, most drug arrests are for simple possession. However, any time they have the chance to disrupt drug trafficking activities, Cobb County law enforcement agencies are all over it.
In drug possession cases, especially marijuana possession, proving the substance was illegal and establishing legal possession are the two biggest issues. These issues are absent in most drug trafficking cases. As outlined below, Georgia law defines both these controversial elements very broadly in trafficking matters.
Because of the way the law is written and the aggressive nature of law enforcement and prosecutors, if you face drug trafficking charges in Cobb County, you need a good Marietta criminal defense lawyer. A number of reasonably positive outcomes are available, but only if a lawyer gets a head start and is very familiar with how these matters work.
Elements of the Offense
In many states, drug trafficking is essentially synonymous with selling or transferring drugs. There are always at least two parties involved. That’s not necessarily the case in Georgia. Prosecutors can establish trafficking by proving any of the following beyond a reasonable doubt:
- Selling: Any sale, regardless of the amount of drugs or the amount of renumeration, could be drug trafficking. That could be selling a dime bag for a penny or giving someone unused Oxycontin in exchange for lunch.
- Manufacturing: These drug trafficking charges usually involve methamphetamines. Technically, prosecutors could establish manufacturing if the defendant had all meth-making ingredients. However, unless the defendant had at least constructive possession of the finished product (more on that below), possession of meth-making ingredients is usually a separate offense.
- Delivering: Usually, these trafficking charges involve giving drugs away. Frequently, the drug is at least semi-legal, such as medical marijuana or a prescription pain pill. However, delivering a single joint or pill could be considered drug trafficking, even if the defendant legally possessed the substance.
- Bringing into the State: Generally, if you were caught with drugs on an interstate north, east, or west of Atlanta, the state might be able to make drug trafficking charges stick. If you were caught anywhere near the state line, the case is even easier to prove.
- Amount: If the defendant had 28 grams of cocaine, MDMA (ecstasy), or meth, ten pounds of marijuana, or four grams of most other drugs, there is a conclusive presumption that the defendant was trafficking them. In other words, there is a conclusive presumption that the drugs were not for personal use.
Amount-based cases get a bit confusing if, as is normally the case, the drugs were not 100 percent pure. Assume Ramon mixed methamphetamines, which are illegal, with ephedrine, which is legal. He was arrested in Marietta with thirty-five grams of product. At first blush, Ramon appears to be in real trouble. But unless the state conclusively establishes that at least 28 grams were meth, Ramon possessed thirty-five grams of something. That’s not illegal in Georgia.
As mentioned, the state can prove actual or constructive possession. Actual possession normally means the drugs are in the person’s hand or within the person’s reach. Constructive possession usually means the drugs were in the person’s control. Drugs in a car’s trunk are the classic example.
Some drug trafficking cases are essentially enhanced possession charges. Others involve large, multi-agency investigations which frequently last for months. These cases make the headlines, which mean more funding for police and prosecutors.
These cases also have lots of moving parts. The search warrant is a good example. Generally, these warrants rely, at least in part, on confidential informants. CIs usually receive money or leniency in exchange for their cooperation. Since many people will say almost anything for love or money, the information CIs provide is usually suspect. Generally, there must be some independent corroboration, or the snitch must have an excellent track record.
Prosecutors cannot work backwards. They cannot argue that, since the police found drugs, the CI’s information must have been reliable.
Furthermore, investigations usually involve photo or live lineups. Unless the lineup was double-blind (neither the witness nor the administering officer knew the suspect’s identity), these identifications are presumptively invalid.
As a side note, suspects have a Fifth Amendment right to refuse to participate in lineups or refuse to have their pictures taken.
We have already touched on one substantive defense. As mentioned, if the drugs were not pure, there might be a variance between the pleadings and the proof. If prosecutors identify the variance early, they can amend it. But if they do not see it until later, the judge normally throws the case out of court.
Furthermore, officers always testify that the substance “field tested” positive for illegal drugs. But subsequent laboratory tests often establish otherwise. For example, in July 2019, police arrested Georgia Southern Quarterback Shai Werts for possession of cocaine. That “cocaine” turned out to be bird poop.
Substantive defenses like these do not need to prove the defendant’s innocence. The state has the burden of proof. So, an attorney must only create reasonable doubt.
Drug trafficking charges in Georgia are easier to prove than they are elsewhere, but many defenses are still available. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. After-hours, virtual, and jail visits are available.