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.

Comments

By Bill Jackson

Oct 14, 2008 8:10 PM | Link to this

The US government is on the verge of bankrupting itself, yet politicians continue to waste upwards of $25 billion a year fighting, prosecuting and incarcerating people who possess, sell or use marijuana. It's complete nonsense. Legalize, regulate and tax. Save the taxpayers a few billion bucks and make some money off a drug that is less harmless than the booze and cigs you can buy at a convenient store. And for those who say it's not....

Here's a test. Put a two men in a room and have one take bong hits and the other take shots of grain alcohol and we'll see who dies first. Not the pothead. He just laughs and watches the drunk puke his guts out and die. But it's LEGAL....what a joke this country has become.

By j

Oct 9, 2008 9:49 PM | Link to this

I was arrested for procession recently. I have 6 months probation, 24 hour community service, 8 p.m. curfew, and a month house arrest. marijuana never killed anyone. it's proven that it is easier to drive high then drunk. it really is a pointless law. but the government makes money off it. they made me take a 100 dollar 12 week class. they made me pay 150 dollars. plus 100 dollars for less than 3 minutes in a courtroom. and 50 dollars for an attorney i talked to for 5 minutes. it is time for legalization.

By Jay

Oct 9, 2008 7:56 PM | Link to this

The Ga. Supreme Court ruled in 1974 that the defendant did not show that Marijuana was not "a completely harmless substance". But they did show through experts that marijuana was far safer than alcohol and tobacco The bar was set to high. Can you prove that WATER is a completely harmless substance? Of course not! Can you show it is a "relatively harmless substance"? Yes. The same test should be used to judge the constitutionality of the law. The state will claim that marijuana is so harmful the state has a right to bust your door down. Yet the defendant showed marijuana is less harmful than alcohol or tobacco. Where are the pony tail lawyer willing to challenge this draconian law? Stand up!

By Heretic

Oct 8, 2008 3:08 PM | Link to this

Wouldn't it be funny if they had to fix the technicality and pass new legislation? That would be the perfect venue to take them to task. If prohibition were not already in place, how could we justify starting it now as a new program, when the money should be used to pay down the bailout? Haven't both candidates promised to end failed programs? How much more failed can a program be? What lower-hanging or riper fruit is there than to stop building new prisons, let the substance abusers out, and use the empty prisons to house the homeless. Let the hippies compete freely against the import cartels with their tax-generating homegrown. Legalization will close this income stream for terrorists.

By corey

Oct 8, 2008 2:00 PM | Link to this

marijuana being legal isnt going to solve any real problems in this country anyways...get lives

By K."wallbanger"Johnson

Oct 8, 2008 1:27 PM | Link to this

First & Foremost, thank you, Mr. Rankin, for pointing out yet one more example of attempts to control the populace by manipulative legislation, as well as, the awareness of an officer of the court, questioning said practice, in re., not only his client's best interests, but that of the democratic principle of "presumption of Innocence, until proof of Guilt." We, as a people, are the victims of the government we empower ...until we choose,AND THEN ACT, otherwise. and now to you boneheads that claim your Guilt as a badge of streetwise courage....no wonder the Courts and Legislature try what they do, your ignorance scares them to the point of attempting to "alleviate" you of your rights. Ignorance is Bliss, hence all the smiling faces......bloodshot eyes or not!

By Michelle

Oct 8, 2008 12:42 PM | Link to this

My mom is paying $500 a bottle for her glaucoma eyedrops which only last a month. Her eye doctor told her point blank that Marijuana would work better and be cheaper than the drops he just couldn't legally tell her to use it.

Legalize it people! Good grief!

By Dank

Oct 8, 2008 12:15 PM | Link to this

Don't waste your time going to L5P if you want any....you'll just get ripped off. Try the 'burbs. We have the best stuff around, you ITP-ers don't have a clue. No shwag allowed!

By Rebecca

Oct 8, 2008 12:10 PM | Link to this

My elderly father's undergoing chemotherapy. I haven't bought pot in close to twenty years. Reckon I can find a seller who won't figure me as a cop? Is that frisbee store in L5P even still around?

By Ilovethaganga

Oct 8, 2008 12:07 PM | Link to this

I love it that most people are in favor of legalization. Why the hell isn't it legal?!?!?! Does our govt respect the will of the people? Obviously not. Vote third party!!!!

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