Cannabidiol is a semi-legal marijuana extract that’s found in health food stores all over Marietta. But legally, CBD Oil is in a grey area. In general, possessing it without a medical marijuana card could get you into trouble, and a good Marietta criminal defense attorney can probably get you out.
Substances like marijuana, which have some narcotic properties and some medicinal qualities, have long been a problem for regulators. In the late 1890s, Bayer sold heroin. The company supposedly marketed the drug as a children’s cough suppressant. Back then, it was legal to sell anything to anybody for any reason.
Fast forward a little over a hundred years to the beginning of the opioid painkiller era. At about the same time some researchers declared that opioid painkillers were not addictive, the government began allowing drug makers to directly market their products to consumers.
Today, Fentanyl and other opioid painkillers are directly or indirectly responsible for over 60,000 deaths a year. Some of these incidents are painkiller overdoses and some are heroin overdoses. When doctors cut off opioid patients or they look for a bigger high, they usually turn to heroin.
CBD Oil and Marietta Drug Crime Attorneys
When Congress passed the Marijuana Tax Act in 1937, which was the first marijuana prohibition law, American scientists knew almost nothing about the plant’s medicinal properties. Much later, when the 1970 Controlled Substances Act outlawed marijuana, there were basically only rumors that the plant might have some medicinal qualities along with its hallucinogenic properties.
Now, that attitude is changing, even among top federal prosecutors. In May 2018, the Justice Department declared that federal marijuana prohibitions do not apply to seeds and oils, including CBD Oil. So, the feds may not care if you have some CBD oil in your medicine cabinet, but do Cobb County prosecutors feel the same way?
Georgia Law
This is where things get tricky. Georgia law defines marijuana as “all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin.” That’s an incredibly broad definition which seems to encompass CBD Oil, which is a marijuana extract.
But not so fast. The legal definition also excludes “the completely sterilized samples of seeds of the plant which are incapable of germination.” This exclusion does not mention CBD Oil by name, but it certainly seems to include it.
THC and CBD oil
The different natures of cannabidiol and tetrahydrocannabinol, which are the two main ingredients in marijuana, may make the difference. THC has both hallucinogenic and medicinal properties, but CBD Oil is strictly medicinal. There’s no reason to outlaw it, except for the fact that it is arguably “marijuana” under Georgia law.
As mentioned, that point is very debatable. At trial, Cobb County prosecutors must establish that CBD Oil is illegal beyond a reasonable doubt. Given the conflict between the general rule and the seeds exception, that’s probably impossible.
Marijuana Possession Penalties and Defenses in Georgia
The stakes are high, because the Peachtree State’s marijuana possession laws are some of the toughest ones in the country. Under Section 16-13-30, possessing even one joint is a misdemeanor (up to one year in jail and a $1,000 fine). Possession of over one ounce, and there are usually about fifty joints in an ounce, is a felony punishable by up to ten years in prison.
In simple terms, if police catch you smoking a joint or carrying a dime bag in your pocket, you may go to jail for a while. If police find your stash, you may go to prison for a long time.
So, how would police find a joint or your stash, and what can a Marietta drug crime attorney do about it?
Let’s start with the joint or dime bag. Typically, this kind of trouble starts with a chance encounter on the street or a random search of a car. In both these cases, officers do not need search warrants to seize contraband, like marijuana or CBD Oil.
Some search warrant exceptions may apply, such as:
- Weapons Pat-Down: If officers have reasonable suspicion, they may stop people on the street, pat them down for weapons, and seize any contraband they find. “Reasonable suspicion” basically means an evidence-based hunch that a person may be dangerous. That’s a very low evidentiary standard.
- Plain View: This doctrine allows officers to seize contraband they find during pat-downs and also seize contraband they see in vehicles, if the drugs or other contraband are in plain sight. Partial plain view cases, like part of a joint protruding from between the seats, are in a grey area.
- Consent: In both these instances, if the vehicle owner or guy on the corner consent to search, officers may do so.
Sometimes, a motion to suppress the evidence is successful in these cases. For example, officers may obtain a passenger’s consent to search a car. Unless the passenger had actual or apparent authority to consent, which is not likely, that search is illegal.
But in most cases, largely due to the low standard of evidence, Cobb County judges will uphold the search. Fortunately, the search is just the first skirmish in a rather long war.
Prosecutors must still prove possession
In court, prosecutors must still prove possession beyond a reasonable doubt. Proximity alone is not good enough. Prosecutors must also establish knowledge and control. Assume officers pull over a car full of people, and they find CDB Oil in the back seat. They immediately arrest Miguel, who was driving the car.
But it will not be easy to connect the CBD Oil with Miguel. He was not very close to the oil. Furthermore, prosecutors must also establish that he knew there was CBD Oil in the back seat and he could get it quickly if he wanted it.
Finally, prosecutors must also prove that CBD Oil is illegal under Georgia law. As discussed above, this last and most important step in the prosecution may be the hardest one for prosecutors to take.
Contact an Experienced Lawyer
CBD Oil is a semi-legal marijuana extract in Georgia. For a consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
