George C. Creal Jr., P.C.,
Marijuana and Georgia DUI | (404) 333-0706

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Marijuana has a very specific definition under Georgia law:  Georgia governor Brian Kemp signed into law on May 10, 2019 the Georgia Hemp Farming Act. The Georgia Hemp Farming Act or HB 213 changed the definition of Marijuana and THC, the psycho-active ingredient of Marijuana, to exclude Hemp. Hemp is federally defined as a delta-9-THC concentration of not more than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined 47 in 7 U.S.C. Section 5940, whichever is greater.  The GBI crime lab generally does not test marijuana currently but encourages Police to use a 3 part field test which only tests for the presence or absence of THC but can not tell you the percentage of THC. This is not enough to maintain a marijuana prosecution. 

As explained in Chambers v. State,  260 Ga.App. 48, 51, 579 S.E.2d 71 (2003) (although officers testified that the cigar contained marijuana, a GBI chemist did not test the substance and could not testify beyond a reasonable doubt that substance was marijuana): 

"The crimes relating to the possession or sale of marijuana are very specifically set forth in the Georgia Controlled Substances Act, OCGA § 16-13-20, et seq. In 2003, under OCGA § 16-13-21(16) marijuana was specifically defined 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; but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25 and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination.

In 2003, OCGA § 16-13-25(3)(P), which is specifically excluded from the definition of "marijuana" is defined as:

(3) Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers (whether optical, position, or geometrics), and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation: ... (P) Tetrahydrocannabinols which shall include, but are not limited to: (i) All synthetic or naturally produced samples containing more than 15 percent by weight of tetrahydrocannabinols; and (ii) All synthetic or naturally produced tetrahydrocannabinol samples which do not contain plant material exhibiting the external morphological features of the plant cannabis.

Given the exceedingly specific and scientific definition of this drug, the instances in which the State could exclude reasonable doubt without performing conclusive, scientific tests on the suspected marijuana would be very rare."  See also, Adkinson v. State, 236 Ga.App. 270, 271, 511 S.E.2d 527 (1999) (evidence insufficient where detectives testified that they believed the substance was marijuana and a GBI chemist stated that he thought the material was marijuana but could not testify to that beyond a reasonable doubt).  OCGA 16-13-21 and 16-13-25 were changed on May 10th, 2019  by the Georgia Hemp Farming Act and now state: 

OCGA § 16-13-21 (2019)(16) 'Marijuana' means 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;, but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25; and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3.
OCGA § 16-13-25. (Schedule I) (P) (P) Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products as such terms are defined in Code Section 2-23-3.  

This new definition brings back to life the underlying rationale of the Chambers case due to the inclusion of THC percentage requirement. A law enforcement sweep on gas stations in Tennessee selling CBD oil gummy bears nick named "Operation Candy Crush " illustrates the current dilemma of Georgia prosecutors. In 2014, Tennessee removed hemp from the definition of marijuana and THC, just like Georgia did in the 2019 Hemp Farming Act, in the Tennessee criminal code. In a February 2018, a law enforcement operation named “Operation Candy Crush” in Rutherford County, Tennessee, closed approximately 25 retail stores and charged  the proprietors with felony drug charges for selling gummy candies made with CBD oil which includes some THC. The prosecution was later dismissed because the State Crime Lab could not distinguish the CBD oil came from marijuana or hemp. After Operation Candy Crush, state officials conceded that the burden of proof of determining if CBD oil is not legally hemp is on the state, not the accused. See National law Review, December 4, 2018. 

 

CBD Oil and/or "Low THC Oil" in Georgia

OCGA 16-13-190 and 191 now legalizes less than 20 oz. of  "low THC oil" for certain disease categories. Low THC Oil is defined in OCGA 16-12-190 as meaning an oil that contains an amount of cannabidiol (CBD) and not more than 5 percent by weight of tetrahydrocannabinol (THC), tetrahydrocannabinolic acid (THCA), or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis.

Cannabidiol (CBD) which is a popular natural remedy used for many diseases and ailments.  Cannabidiol is commonly refered to as CBD. CBD is one of the 104 chemical compounds known as cannabinoids found in the cannabis or marijuana plant, Cannabis sativa.  THCA is found in raw and live cannabis. As  marijuana plants are dried,THCA converts to THC. Heat accelerates this conversion in a process known as decarboxylation. This is what happens when you burn marijuana in a joint or a blunt. THC is what makes you high when you smoke marijuana or is the psychoactive ingredient of marijuana but THC is typically out of your system in 4 hours after smoking. CBD is non-psychoactive so it will not make you high.  In very basic terms, this means that any CBD oil must less than 5% THC. The disease categories are listed in OCGA § 31-2A-18 (2017). The disease categories are listed as follows: 

(a) As used in this Code section, the term:
(3) "Condition" means:
(A) Cancer, when such disease is diagnosed as end stage or the treatment produces related wasting illness or recalcitrant nausea and vomiting;
(B) Amyotrophic lateral sclerosis, when such disease is diagnosed as severe or end stage;
(C) Seizure disorders related to a diagnosis of epilepsy or trauma related head injuries;
(D) Multiple sclerosis, when such disease is diagnosed as severe or end stage;
(E) Crohn's disease;
(F) Mitochondrial disease;
(G) Parkinson's disease, when such disease is diagnosed as severe or end stage;
(H) Sickle cell disease, when such disease is diagnosed as severe or end stage;
(I) Tourette's syndrome, when such syndrome is diagnosed as severe;
(J) Autism spectrum disorder, when such disorder is diagnosed for a patient who is at least 18 years of age, or severe autism, when diagnosed for a patient who is less than 18 years of age;
(K) Epidermolysis bullosa;
(L) Alzheimer's disease, when such disease is diagnosed as severe or end stage;
(M) Acquired immune deficiency syndrome, when such syndrome is diagnosed as severe or end stage; or
(N) Peripheral neuropathy, when such symptoms are diagnosed as severe or end stage.

OCGA 31-2A-18 was amended and signed into law in may of 2018 to include intractable pain and post-traumatic stress disorder resulting from direct exposure to or witnessing of a trauma for a patient who is at least 18 years of age. 

The basic steps to obtain a Georgia low THC oil card are The basic steps to obtaining a card are as follows:

1) Patients and caregivers of patients who believe they may be eligible should consult with their physician about the possibility of obtaining a card allowing them to possess 20 fluid ounces of low THC oil within the state of Georgia.
2) If approved by the physician, the patient or patient’s caregivers’ information will be entered into DPH’s secure “Low THC Oil Registry” and a card(s) will be issued.
3) Patients and caregivers will be notified when the cards are ready for pickup (within 15 business days) from one of several public health offices geographically spread around the state.

“Low THC Oil Registry” cards cost $25. The Low THC oil cards will be valid for two years from the date issued. After two years, cardholders will need to consult with their physician about renewal eligibility and update patient information into the low THC oil registry.

Georgia Marijuana DUI:

Many people mistakenly believe that they can get a Marijuana DUI for simply having marijuana in their system. This used to be the case under O.C.G.A. 40-6-391(a)(6) before the Georgia Supreme Court ruled that a "per se" Marijuana under subsection (a)(6) of the Georgia DUI statute was an Unconstitutional Denial of Equal Protection under the law. In Love v. State, 271 Ga. 398, 400(1), 517 S.E.2d 53 (1999), The Georgia Supreme Court held that the fact that the effects of legally-used marijuana are indistinguishable from the effects of illegally-used marijuana could not be explained under an Equal Protection Constitutional Analysis. The Georgia Supreme Court reasoned that the difference was not directly related to the public safety purpose of the legislation as required. The Supreme Court held that the distinction between legal marijuana and illegal marijuana was arbitrarily drawn, and the statute, O.C.G.A. 40-6-391(a)(6) was an unconstitutional denial of equal protection.

Under current law, you can only receive a DUI for ingesting marijuana if the police can prove beyond a reasonable doubt that the marijuana made you "incapable of driving safely" or "less safe." This means there must be at least an act of less safe driving resulting from marijuana usage or some evidence from which you could infer that marijuana usage impaired driving ability -  like an intoxicated demeanor or poor performance on DUI field sobriety tests. The reality is that marijuana DUI cases are exceedingly difficult to prove. Even more so than "Less Safe" Alcohol DUI cases.  

Hire a Georgia Lawyer That Can Deliver the Results You Deserve! 

All you need is a reasonable doubt to beat a Marijuana Possession or a Marijuana DUI conviction, and our firm has an established track record of delivering!

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Blogspot: Drug-related Cases of Note:

AAA Study finds legal limit for Marijuana DUIs have no basis

Wednesday, May 11, 2016
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Two NHTSA Marijuana Studies find there is no real evidence of danger.

Friday, February 13, 2015
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Blowing smoke just took on a new meaning

Thursday, December 04, 2014
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How drug convictions and DUI drug convictions affect your drivers license

Friday, October 31, 2014
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New Federal Bill would create a national standard for Marijauna DUI driving

Sunday, March 09, 2014

georgia marijauna duiA new bill introduced in Congress would create a national standard for DUI Marijuana and threaten any states that failed to comply with a suspension of federal highway funds. So much for states rights.  Polis who introduced the bill is a Democrat but it will be interesting to see how Republicans who are traditionally States Rights oriented will reconcile their State's Rights core values with tough on crime tradition. In Georgia, to be found DUI while driving under the influence of Marijuana you must be proven to be a less safe driver or incapable of driving safely after have consumed or smoked marijauna. Marijuana like alcohol effects differently people differently and there is no scientific consensus on what an appropriate level of THC in the blood should be per se DUI if at all.  more

CNN probes 5 nanograms as a legal limit for Marijuana DUI per se in Washington State

Thursday, February 27, 2014
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Lewis v. State A13A1263 Anonymous Tip of driving slow in area of thefts not good enough for stop

Wednesday, August 21, 2013
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Mitchell v. State - A13A0035 - Roadblocks: safety concerns are okay

Tuesday, May 07, 2013
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Armour v. State - A12A0274 - Johnson County Drug DUI Appeal: When do you have DUI Drug Probable Cause?

Thursday, June 28, 2012
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Wilder v. State, S10G1897, November 7, 2011: Search and Seizure of Locked Briefcase in home of another

Friday, November 18, 2011
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is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Atlanta DUI lawyers with both an AV Preeminent rating from Martindale.com and a 10.0/10.0 Superb rating on Avvo.com. He has over 100 "not guilty" verdicts under his belt and has forged indispensable relationships with police, judges and prosecutors all over the State of Georgia in order to benefit his clients' defense.
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George C. Creal Jr., P.C., Top Atlanta DUI Law Firm

No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI arrests occurring in the State of Georgia. Individuals with DUI from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2014 George C. Creal, Jr. P.C.
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