Drug Related object(Georgia) NO illegal drugs found, what should I do?

[Marooned]

What is the name of your state (only U.S. law)? Georgia


My question involves criminal law for the state of: Georgia

I was arrested while in possession of a pipe that had residue on it belonging to one of those "herbal incenses" and some of the "herbal incense" itself. The pipe and the "herbal incense" were tested for marijuana and illegal chemicals which came back negative.

The relevant code is here:


(2) "Dangerous drug" shall have the same meaning as defined in Article 3 of this chapter, relating to dangerous drugs.

(3) "Drug related object" means any machine, instrument, tool, equipment, contrivance, or device which an average person would reasonably conclude is intended to be used for one or more of the following purposes:

(A) To introduce into the human body any dangerous drug or controlled substance under circumstances in violation of the laws of this state;

(B) To enhance the effect on the human body of any dangerous drug or controlled substance under circumstances in violation of the laws of this state;

(C) To conceal any quantity of any dangerous drug or controlled substance under circumstances in violation of the laws of this state; or

(D) To test the strength, effectiveness, or purity of any dangerous drug or controlled substance under circumstances in violation of the laws of this state.

(4) "Knowingly" means having general knowledge that a machine, instrument, tool, item of equipment, contrivance, or device is a drug related object or having reasonable grounds to believe that any such object is or may, to an average person, appear to be a drug related object. If any such object has printed thereon or is accompanied by instructions explaining the purpose and use of such object and if following such instructions would cause a person to commit an act involving the use or possession of a dangerous drug or controlled substance in violation of the laws of this state, then such instructions shall constitute prima-facie evidence of knowledge that the object in question is a drug related object.


see: § 16-13-1 - Drug related objects :: 2010 Georgia Code :: US Codes and Statutes :: US Law :: Justia


When I was arrested I made no attempt to conceal or misrepresent myself or what I was in possession of, there was nothing illegal about what I was in possession of.


Right now I'm going with the defense of "The evidence against me in this case does not violate applicable Georgia state code 16-13-1 because the object in question was not found to be containing any dangerous drug or controlled substance under circumstances in violation of the laws of this state, nor was I found to be in possession of any dangerous drug or controlled substance under circumstances in violation of the laws of this state. Thus an average person would reasonably conclude that the object in question was not intended to be used for one or more of the purposes listed in Title 16 Chapter 13 Article 1 section 3."

 

[justalayman]

it doesn't matter that you didn't have any illegal drugs on you and per the definition, it doesn't require evidence of using the object for anything related to illegal drugs:


(3) "Drug related object" means any machine, instrument, tool, equipment, contrivance, or device which an average person would reasonably conclude is intended to be used for one or more of the following purposes:

Thus an average person would reasonably conclude that the object in question was not intended to be used
not true. If the device, when shown to the average person, without any other information, would be seen as a drug related device, it is illegal under this law.

while I don't agree with the law, it is what it is.


If you have lots of money (like more than Tommy Chong) feel free to contest the charge based on the fact your device was not in fact used for illegal purposes. It didn't work for him.

the problem with laws such as this is they are (in my opinion) overly broad and as such, unenforceable due to Constitutional issues.

prosecuting a law as this would be no different than arresting a gun owner for murder, even if the gun had never been loaded, because a gun can be used to commit murder.

 

[Marooned]

Okay well I would argue back that according to http://law.onecle.com/georgia/16/16-13-32.html

(a) As used in this Code section, the term:

(1) 'Drug related object' means any instrument, device, or object which is designed or marketed as useful primarily for one or more of the following purposes:

The object in question is a glass tobacco pipe marketed primarily for use of smoking tobacco, an average person would conclude, barring trace evidence or actual possession of any illegal drugs, that the object is a tobacco pipe meant for smoking tobacco.

Simplified:
-The object is a glass tobacco pipe marketed primarily for tobacco use
-There is no supporting evidence that the object is drug related.

I'm obviously no lawyer but that sounds pretty concrete to me?

 

[justalayman]

(a) As used in this Code section, the term:

check on the definition of "code section" for GA law. Then figure out of the section you last cited is applicable to the code section you are charged with.

 

[TheGeekess]

Okay well I would argue back that according to http://law.onecle.com/georgia/16/16-13-32.html

(a) As used in this Code section, the term:

(1) 'Drug related object' means any instrument, device, or object which is designed or marketed as useful primarily for one or more of the following purposes:

The object in question is a glass tobacco pipe marketed primarily for use of smoking tobacco, an average person would conclude, barring trace evidence or actual possession of any illegal drugs, that the object is a tobacco pipe meant for smoking tobacco.

Simplified:
-The object is a glass tobacco pipe marketed primarily for tobacco use
-There is no supporting evidence that the object is drug related.

I'm obviously no lawyer but that sounds pretty concrete to me?

I've not ever seen a pipe tobacco smoker use a glass pipe.

 

[sandyclaus]

Okay well I would argue back that according to http://law.onecle.com/georgia/16/16-13-32.html

(a) As used in this Code section, the term:

(1) 'Drug related object' means any instrument, device, or object which is designed or marketed as useful primarily for one or more of the following purposes:

The object in question is a glass tobacco pipe marketed primarily for use of smoking tobacco, an average person would conclude, barring trace evidence or actual possession of any illegal drugs, that the object is a tobacco pipe meant for smoking tobacco.

Simplified:
-The object is a glass tobacco pipe marketed primarily for tobacco use
-There is no supporting evidence that the object is drug related.

I'm obviously no lawyer but that sounds pretty concrete to me?

Given that there was a residue and presence of an illegal substance (the "herbal incense") in your pipe when it was found, it would be reasonable to assume that its sole purpose was as a device for smoking illegal substances instead of just plain tobacco.

And yes, it IS illegal to possess or use the stuff: http://chronicle.augusta.com/news/2012-04-03/georgia-lawmakers-outlaw-synthetic-marijuana

I think that would be checkmate. "Your argument is flawed." Game over.

 

[justalayman]

Given that there was a residue and presence of an illegal substance (the "herbal incense") in your pipe when it was found, it would be reasonable to assume that its sole purpose was as a device for smoking illegal substances instead of just plain tobacco.

And yes, it IS illegal to possess or use the stuff: http://chronicle.augusta.com/news/2012-04-03/georgia-lawmakers-outlaw-synthetic-marijuana

I think that would be checkmate. "Your argument is flawed." Game over.

hmmm, kind of a simple resolution. Wish I had checked the OP's claims in the beginning.

 

[sandyclaus]

hmmm, kind of a simple resolution. Wish I had checked the OP's claims in the beginning.

It really is.

Honestly, this "synthetic marijuana" along with Bath Salts and the like are a new drug trend these days. A lot of jurisdictions are enacting laws to ban them and classify them as illegal substances so that people can't try to use the "but it's NOT illegal to use these" excuses.

Just because it isn't REAL marijuana is no longer a valid defense to charges such as those that OP is facing.

 

[justalayman]

It really is.
.

not doubting you. I know they have been playing with laws regarding this around me and I should have known better than to take a stoner's word it wasn't illegal in his state.

 

[Marooned]

The pipe was tested and was not found to contain any of the outlawed chemicals, it is not "my word".

 

[justalayman]

The pipe was tested and was not found to contain any of the outlawed chemicals, it is not "my word".

that is not a requirement of the law.

 

[Marooned]

that is not a requirement of the law.

Broad is right huh, thanks for the info guys I was planning on getting a deal with the prosecutor anyways as there is a special circumstance but this was all very informative.

 

[sandyclaus]

The pipe was tested and was not found to contain any of the outlawed chemicals, it is not "my word".

Um... WRONG.

...
I was arrested while in possession of a pipe that had residue on it belonging to one of those "herbal incenses" and some of the "herbal incense" itself. The pipe and the "herbal incense" were tested for marijuana and illegal chemicals which came back negative...

The new law applies to all forms of synthetic marijuana, of which your "herbal incense" is just one.

I wouldn't expect a plea bargain or dismissal on this charge with your flawed arguments.