SpiralArchitect

Attorney argues marijuana law is unconstitutional
10/8/2008|AJC|Bill Rankin

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.

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.

[News Note: There is a comment section here. ]

dirtbomb

Better than it being a felony, I guess.

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I need LUNCH

I agree with dirtbomb; what is Mrclurg declaring unconstitutional? a misdemeanor for an ounce seems fair, Iv heard of worse. and hey dirtbomb, thats a ramones quotation, no?

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dirtbomb

Yes and no.
It was kind of a musical joke, going back to Herman's Hermits or probably even earlier. It's a nod to bands that don't take themselves too seriously. The Ramones are an old favorite, though.

Buzzby

Mr. McClurg is asserting (as he has no standing to declare anything unconstitutional) that the law, as written, violates due process because it says that anyone charged with minor marijuana possession is automatically guilty of a misdemeanor. In the United States, someone who is charged with a crime is considered innocent until proven guilty.

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LowRider

This article is confusing, could of been written better. What is unconstitutional the fact there was no jury or they were being charged with a felony for what should be a misdemeanor?

gratefulvideofan

Read literally, and laws often/usually are, the wording declares any person charged of possession automatically guilty of a misdemeanor. But the spirit of the law is clear and this attorney will lose. The law has been enforced as worded for 37 years.

SpiralArchitect

So does this guy actually stand a chance to make a point, or is he arguing on semantics?

Maybe he is just trying to delay prosecution and maybe make some money off his defendant in the process?

I mean, if the kid was caught with weed, he was caught with weed. How much proof does the court need to provide? Photo evidence? Police testimony?

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Buzzby

The text of the law should be changed to say what it means. This was obviously just a semantic error, not an attempt to declare people guilty without a trial. If they change the text, I don't think that would get the defendant off the hook, but I'm no lawyer.

ccmcclurg

While I realize that many of you believe the argument is semantical, or the legislature merely used the wrong word, it is imperative that the law not be allowed to stand. Citizens are presumed to know the law. The law is also interpreted and applied giving words their plain and unambiguous meaning.

The problem with the statute is that it can be misunderstood by everyday citizens, because the wording is so clear and unambiguous, that is, "[a]ny person who is CHARGED SHALL BE GUILTY." How do we explain to persons in Georgia that they should give certain statutes their plain meaning, but others we should not? Try using that argument on other laws. "Your honor, I didn't realize that the legislature meant what it said when it said that I shall not commit murder."

Not all persons are as informed as others of their rights. For instance, take a 18 year old defendant who recently has been charged with possession of less than an ounce of marijuana. The accusation/citation includes the statutory reference (in this case O.C.G.A. 16-13-2(b)). He reads the statute and gives it its clear and unambiguous meaning, that is "Ive been charged, I shall be guilty." He may not seek legal representation, may not assert his right to trial, and may plea because of the overwhelming import of the plain meaning of the words of the statute.

The real question is, if the statute is so clearly facially unconstitutional, why not change it? There's only one reason why not to. I am at a loss to explain why anyone would be opposed to changing the statute to be consistent with our principles of due process, and eliminate arbitrary and capricious application of the statute, and eliminate the possible chilling effect it has on individuals asserting their constitutional rights. I have no position on the legalization of marijuana; however, I am for the upholding of our rights to the presumption of innocence and to the right to a trial by jury.