Attorney argues marijuana law is unconstitutional

Suspects charged with crimes in Georgia have the right to the presumption of innocence and a trial by jury — or, at least, most people would think so.

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But the Legislature must have forgotten those bedrock principles in 1971 when it passed a law making possession of less than one ounce of marijuana a misdemeanor, a Lawrenceville lawyer told the Georgia Supreme Court Tuesday. For this reason, the law should be declared unconstitutional, argued Christopher McClurg, who represents a Gwinnett County juvenile.

The law reads, “Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor.”

“It couldn’t be any clearer,” McClurg told the court. “Read the words they put on the paper….It’s unconstitutional on its face.”

But Justice George Carley, during Tuesday’s arguments, questioned whether the court must overturn the law.

“Statutes aren’t to be read literally if they produce absurd results,” he said. “That’s sort of absurd, isn’t it?”

McClurg responded, “I’m not sure what the Legislature meant by that, except they were very clear by what they put in that sentence….How do we explain that to all the people of Georgia?”

Gwinnett County District Attorney Danny Porter said the drug statute should be read in context with other laws, particularly the Violation of Georgia Controlled Substances Act that grants legal protections to all defendants.

“I live in a world where a defendant can’t be said to have done it until I prove it beyond a reasonable doubt,” Porter told the court. “That is the underpinning of every criminal statute.”

The law was passed to reduce the penalty for possessing less than an ounce of marijuana, not to deny due process rights, Porter said.

McClurg’s juvenile client, described in court documents only as “D.H.,” was arrested in August 2007 when an anonymous tipster told police he’d just witnessed a drug deal at an Exxon station. D.H. and his co-defendant, who had marijuana in his pocket, matched the informant’s descriptions and were soon arrested.

Carley indicated the court may have to deal with the language of the statute at a later time. Before declaring a law unconstitutional, the court must have a written order from a judge upholding the statute. Otherwise, Carley suggested, the state Supreme Court does not have jurisdiction over the case.

When asked by Carley, Porter said there is no order from the Juvenile Court judge specifically upholding the law as constitutional.