Drug trafficking charges in Georgia are based on accusations that a person possesses, sells, distributes or produces a large number of illegal drugs. The difference between drug trafficking and other drug crimes–such as possession of drugs, distribution of drugs or drug production–is the number of drugs implicated in the offense. In most states, in order to be charged with drug trafficking, the case must involve more than several pounds of marijuana or an ounce or more of drugs like cocaine or methamphetamine. Because a trafficking case involves a larger amount of drugs, drug trafficking charges can carry severe mandatory minimum jail sentences that usually increase with the number of drugs.
The government must show certain elements of the offense to prove drug trafficking in court. These elements must be proved beyond reasonable doubt. There are basically two elements in the case of drug trafficking. The first element is that the government must demonstrate that the person knowingly sold, delivered, produced or possessed a certain amount of drugs. So, in essence, trafficking is any kind of drug crime. Selling drugs, having drugs, making drugs, as long as there is a certain amount of drugs involved in the crime. The number of drugs will depend on the type of drug involved in the case and what is being prosecuted by the state or government agency. For instance, if you have cocaine or methamphetamine in Georgia, if it is 28 grams or more, it is a case of trafficking. And what you do with the drugs doesn't matter. To be charged with trafficking, you don't have to sell drugs. Again, the important thing is the number of drugs that the state must prove that in order to make a trafficking case, you either had or had access to in some capacity.
Now, there are defenses against a drug trafficking charge, and in cases like this, we have used many defenses effectively to represent people. One of the first defenses is that there are not enough drugs, and it's an obvious defense. Since a case of trafficking is not only based on the activity, whether you are selling, manufacturing, importing, or even possessing, you have to show a certain amount. So if the state is testing the drugs and it comes back right around the threshold, say, you know, 28.5 grams, the test may be wrong. So we're going to get in an independent expert, look at that test and see if we've got an argument that they haven't met the quantity threshold. If we can make that argument, we can usually resolve the case for a lower charge.
Another defense and this only applies in a possession case, is that drug possession was not real or constructive. However if the government decides, "We will charge you with trafficking because we understand that in your home or car you have a kilogram of cocaine." Now we can show the quantity because it's a kilo of cocaine, but we've got to show that those drugs belonged to you too. And in two ways they can do that. They may be able to show real possession. If you drive the car and the drugs are sitting next to you, these drugs are actually in your possession. It's really within reach of your arms, no question. But even if they're not with you at the time, you can also possess drugs. Let's say you're back at the house with a kilo of cocaine and driving somewhere else in the city. You don't have that cocaine with you now, but you both have the power and the intention to go back and get it. In your house it's stored, you know it's there. You have constructive possession of these drugs in that case. The state has to show either one or the other. If they can't show you have real or constructive possession of the drugs and base the trafficking charge off an allegation of possession, they can't convict you.
Another defense is the defense of equal access, which is applicable when the state attempts using a presumption against you. Let's go back to that example and say the police went home, they had a search warrant, they've searched, they've found the kilo of drugs. You're not there, but the police say, "Hey, it's your house, we've found drugs there, these drugs have to belong to you." That's a presumption, and they can argue in court, but if they do, you can argue the defense of equal access. You can say, "Well, that may be my house, but other people have a key." If that's true, then you can't be convicted by the state simply on the assumption that the drugs were yours because they were found in your home.
In any drug case, another defense is that you want to challenge any illegal search or wiretap. It’s uncommon to see a drug case in which there wasn't a search that was challenged. If they went to the house and searched for it and had a search warrant, the warrant may have been too wide. There may not have been enough likely cause to support the warrant. And what if they go to a house without a warrant? They say they've got consent, they've got search permission. Well, perhaps they weren't. It's important that a lawyer looks at all these issues because if you can challenge an unlawful search, you can keep that evidence out and it won't be used in court against you. And many times, this will result in the charges being completely dismissed.
You want to challenge a wiretap as well. Now it’s wiretaps all the time in drug cases these days. That's when a judge permits law enforcement to record your conversations with others. In some cases, this is very damaging evidence. For two reasons, it’s possible to have this evidence excluded from the trial. Let's say, number one, law enforcement has been given a judge to go ahead and issue that wiretap, but they have not had enough likely cause. A judge can say that there was not enough evidence, so the wiretaps can be excluded. They will be unable to use that evidence.
Another way it’s possible to keep wiretaps out of court during a trial was when the government had a probable cause, they got the wiretap, they did what they were supposed to do, but they didn't seal them properly once they had the recordings. The statute on a wiretap is very specific about what law enforcement should do once they have these records. If they do not follow those procedures it can sometimes be dismissed.
So in any drug trafficking case, there are several common defenses that a lawyer should consider. If you're charged with something like this or you know someone who, hopefully, have at least answered some of the questions you might have. But if you still have questions, do not hesitate to call us. For the past 25 years now, we have been handling cases like this, and we will do our best to help.
Cocaine trafficking is defined as the sale, manufacture, delivery or knowledgeable possession of 28 grams or more of cocaine. The penalty is a mandatory minimum sentence of 10 years if the quantity is at least 28 grams but less than 200 grams. The law requires a minimum sentence of 15 years for quantities of at least 200 grams but less than 400 grams. There is a minimum sentence of 25 years with more than 400 grams of cocaine. A person commits the crime of trafficking for morphine or opium (including heroin) when he or she owns 4 grams or more. Selling, delivering or possessing 4 or more grams requires a minimum sentence of 5 years but less than 14 grams. A sentence of at least 10 years is required for quantities between 14 and less than 28 grams. The law requires a sentence of at least 25 years for 28 grams or more. Marijuana trafficking is defined as the sale, manufacture, grow, supply or possession of more than 10 pounds of marijuana. A sum exceeding 10 pounds but less than 2,000 pounds requires a sentence of at least 5 years. A minimum sentence of 7 years is required for an amount between 2,000 but less than 10,000 pounds. The minimum sentence is 15 years for 10,000 pounds or more.
Trafficking involves selling, delivering, or possessing 28 grams or more for methamphetamine or amphetamine. Amounts ranging from 28 to less than 200 grams will result in a sentence of at least 10 years. A mandatory minimum of 15 years is required for amounts between 200 but less than 400 grams. Greater amounts trigger a minimum sentence of 25 years. Production of these drugs carries its own penalties, which are almost the same as above. The only difference is that a minimum sentence of 10 years is required to manufacture any amount below 200 grams.
Although the above sentences are compulsory minimum sentences, there are three different ways in which a defendant can be sentenced to less than the compulsory minimum. First, if the defendant provides substantial assistance in identifying, arresting or convicting any other individuals involved in the drug operation, the District Attorney may file a motion requesting the sentencing court to reduce or suspend a sentence. Again, the sentencing court may use its discretion to depart from a mandatory sentence if the defendant was not a leader in the drug operation, if the defendant did not have a weapon, if the criminal behavior did not result in death or serious physical injury, if the defendant had no prior offense and if the defendant did not apply the mandatory minimum sentence lastly.
Sources: O.C.G.A. 16-13-31