House Bill 181, which took effect on January 1, 2025, added this substance to the controlled substances list, criminalizing its use, sale, or possession, and adding other requirements as well.
The provision lowers the age of illegal kratom transfers from 21 to 18. It also prohibits the ingestion of kratom using a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means that can be used to produce a vapor solution. This includes e-cigarettes, electronic cigars, electronic pipes, and other cartridge devices.
Violating the new terms of the law is a misdemeanor with a $250 fine for the first offense, $500 for second, and $1,000 for any offense after.
HB 181 also bars any therapeutic use claims and requires warning labels advising customers to consult physicians about use. A violation is a misdemeanor of high and aggravated nature with second and additional violations being a felony with 1-15 years in prison and a $100,000 fine.
What is Kratom?
We didn’t know what kratom was until we Googled it. But we did know that Schedule I and II controlled substances, which are substances with some potential for addiction and some medicinal benefits, have a long and controversial history in Georgia law.
Briefly, Kratom is a Southeast Asian that resembles marijuana. Kratom supposedly elevates mood, relieves pain, and increases energy. But these medical benefits are largely anecdotal. Furthermore, kratom is on the controlled substances list in over a dozen countries.
The controlled substances list is not set in stone. Lawmakers frequently add or delete substances. They also promote or demote substances. For example, a medical discovery might move a substance from Schedule II (moderate possibility of addition and medicinal benefits) to Schedule III (low probability of addiction and significant medicinal benefits). Such a change is significant. Possession of a Schedule III substance is usually a misdemeanor and possession of a Schedule II substance is usually a felony.
Synthetic marijuana is another example. Before the pandemic, convenience stores in and around Marietta routinely sold Dancing Monkey, Crazy Monkey, Funky Monkey, and other synthetic marijuana too numerous to mention here. One by one, lawmakers added these items to the controlled substances list.
So, synthetic marijuana may have been legal to use at the time of the arrest. If that was the case, a Marietta criminal defense lawyer could usually get drug charges dismissed, even felony drug charges.
In Georgia, many drug dealers and users combine kratom with another substance, such as codeine. Cutting is legally significant because the substance may not have enough codeine or kratom to qualify as codeine or kratom, as named in the charging instrument. If there’s a variance between the pleadings and the proof, once again, a Marietta criminal defense lawyer could get the charges thrown out of court.
Drug Use
Being under the influence of kratom or any other drug could lead to disorderly conduct charges or much more serious DUI charges.
Section 16-11-39 (Disorderly Conduct) applies if a person “acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health.” People who are high on drugs often act unpredictably and could reasonably scare other people. Many local municipalities have local ordinances that address this subject as well. In most cases, authorities could prosecute offenders for one or the other, but not both.
Penalties for disorderly conduct and related violations are usually minor. Penalties for DUI, however, are often extreme, especially when considering the direct and collateral consequences of a DUI.
DUI-drug violations usually fall under Section 40-6-39(a)(2) (driving Under the influence of any drug to the extent that it is less safe for the person to drive). A “less-safe” circumstantial evidence DUI infraction may not technically constitute a DUI conviction for one or more purposes, such as punishment or an SR-22 high-risk auto insurance requirement.
The Georgia Code doesn’t say the “drug” must be illegal. So, even legal substances, such as caffeine or sugar, could support a less safe DUI-drug charge. Additionally, there’s a difference between less safe and intoxicated. If Will is driving at 99 percent because he just chug-a-lugged an energy drink, it’s less safe for him to drive.
A lower threshold of proof doesn’t affect the burden of proof, which is beyond a reasonable doubt. Police officers rarely administer blood, urine, or other tests to determine drug use, unless the defendant was involved in an accident. So, in most cases, prosecutors must use circumstantial evidence to meet this high burden of proof.
This circumstantial evidence is often suspect. The HGN (horizontal gaze nystagmus) test, or DUI eye test, is a good example.
Right off the back, HGN, by itself, does not indicate drug impairment. The administering officer must also measure VGN (visual gaze nystagmus). The HGN test without the VGN test is like Lennon without McCartney. The Beetles didn’t exist without both, and the state cannot convict someone of DUI-drugs without both.
Furthermore, drug use is not the only cause, or even the leading cause, of nystagmus. As many as 40 percent of adults have this condition, which is usually caused by a childhood brain injury. In other words, many people cannot pass a nystagmus test whether they’re drunk, sober, or somewhere in between.
Additionally, HGN/VGN test results are only reliable under controlled conditions. Uncontrolled roadside eye test conditions include flashing squad car lights in the background and passing high-intensity headlights against a dark sky.
For these and other reasons, most Cobb County judges only admit DUI eye test evidence for limited purposes, usually to determine if an officer had probable cause to demand a chemical sample.
Drug Possession and Trafficking
Most kratom and other controlled substances arrests are drug possession arrests. Continuing a familiar theme, these cases are difficult to prove in court, but not exclusively because of evidence issues, or because of the burden of proof. Drug possession cases have several moving parts, such as:
- Producing the Substance in Court: The state must produce the seized item in court. Testimony about a seized item isn’t good enough. Physical evidence is inadmissible unless officers had a valid warrant or a narrow search warrant exception, such as property owner consent, applied.
- Proving the Substance Was Illegal: We discussed this issue above. One thing we didn’t discuss was the difference between an unscientific “field test” and a scientific laboratory test. Marijuana is a good example. Most of us know what marijuana looks and smells like. But hemp, a legal substance, looks and smells exactly the same. Only a THC content test conclusively establishes the difference between the two.
- Establishing Legal Possession: Close proximity is only one part of legal possession. Prosecutors must also establish actual knowledge and exclusive control. Significantly, the actual knowledge refers to the facts, not the law. Dan may not know that kratom is now illegal. But if he knows he has kratom in his possession, drug possession charges could hold up in court.
Prosecutors typically use additional circumstantial evidence, such as cash, quantity, baggies, or scales, to enhance possession charges to trafficking charges. We discussed the problems with circumstantial evidence in court above.
Drug cases are very complex in Georgia. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
