DUI Case Law and Updates
William S. Hardman, Jr.
Attorney at Law
Attorney at Law
Conditional Discharge and Pre-trial diversion for Possession of Marijuana in Georgia
Under Georgia law O.C.G.A. 16-13-2, a person who is found to be in possession of less than one ounce of marijuana may be eligible to have the charge dismissed without an adjudication of guilt, or no conviction for possession of drugs. The statute says:
"the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require, preferably terms which require the person to undergo a comprehensive rehabilitation program, including, if necessary, medical treatment, not to exceed three years, designed to acquaint him with the ill effects of drug abuse and to provide him with knowledge of the gains and benefits which can be achieved by being a good member of society. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Code section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this Code section may occur only once with respect to any person."
Pre-trial diversion is a different statute and method of disposing of possession cases without the use of the conditional discharge statute. Under O.C.G.A. 15-18-80, prosecutors are authorized to create and administer a Pretrial Intervention and Diversion Programs. The prosecutor may require the defendant to have a drug and alcohol evaluation, complete community service, and other requirements such as payment of a fee to be in the program.
One important factor and decision in deciding whether or not to enter into a pre-trial diversion program is: "What will be the final result or disposition of the case?"
The goal is to have the possession charges dismissed at the conclusion of the pre-trial diversion program. It is important to obtain a copy of the court's Order dismissing the charges upon completion of the program. Your case may also be eligible for expungement or record restriction if the case is dismissed after completion of the program. This is important because access to an individual's criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, shall be restricted under certain provisions of the record restriction statute.
Case summary and example of the use of the pre-trial diversion statute
Client was in an area of town that he is unfamiliar with and pulls into a shopping center parking lot to check his Google Maps to determine where he is and find the directions to his hotel. Once client has plugs the directions into his phone and leaves the parking lot, he is pulled over for no headlights. Officer states that he smells marijuana and asks client if there is any marijuana in the vehicle. Client tells the officer that there is a small amount of marijuana located inside of a pill bottle in the back seat of the car. Client is arrested for possession of marijuana less than an ounce and a headlight violation. At court, client's attorney is able to negotiate client's entry into the pre-trial program and the prosecutor requires: a drug and alcohol evaluation, 20 hours of community service, and payment of a fee in the amount of $250 to be included in the program. Client completed all of the terms of the pre-trial diversion program and his attorney requests a copy of the Order dismissing the charges. Because client completed all of the terms he is eligible for record restriction/many times referred to as expungement of his drug possession charges. This is helpful so that future employers or other entities will not see a drug possession charge on his record during criminal background checks. This case was handled by Attorney Bill Hardman.
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