You have requested my unofficial opinion concerning whether, for the purposes of obtaining a license to carry a pistol or revolver, a guilty plea to misdemeanor possession of marijuana amounts to an offense arising out of the possession of a controlled substance or dangerous drug. Official Code of Georgia Annotated † 16-11-129(b)(5)(A) provides that a license to carry a firearm shall not be granted to any person "who has been convicted of an offense arising out of the unlawful manufacture, distribution, possession, or use of a controlled substance or other dangerous drug."

As used in that Code Section, the term "convicted" includes a finding of guilt, a plea of guilty, the acceptance of a plea of nolo contendere, and the affording of first offender treatment. O.C.G.A. † 16-11-129(b)(5)(B)(ii). The term "dangerous drug" means any drug defined as such in O.C.G.A. † 16-13-71. O.C.G.A. † 16-11-129(b)(5)(B)(iii). The term "controlled substance" means any "drug, substance, or immediate precursor included in the definition of controlled substances in paragraph (4) of Code Section 16-31-21." O.C.G.A. † 16-11-129(b)(5)(B)(i). Official Code of Georgia Annotated † 16-13-21(4) defines "controlled substance" as a "drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308."

Marijuana is not enumerated as a dangerous drug in O.C.G.A. † 16-13-71; neither is it specifically enumerated as a controlled substance in Schedules I through V of O.C.G.A.

†† 16-13-25 through 16-13-29. In fact, O.C.G.A. † 16-13-21(16) defines marijuana so that only limited synthetic or naturally produced samples of tetrahydrocannabinols are included in Georgia's Schedule I. However, the federal Schedule I, which is incorporated into the definition of "controlled substance" set forth in O.C.G.A. † 16-13-21(4), does enumerate marijuana as a Schedule I controlled substance. 21 C.F.R. † 1308.11(d)(19)(1997).

Therefore, it is my unofficial opinion that, for the purposes of O.C.G.A. † 16-11-129, marijuana is a controlled substance. A conviction arising out of the possession of marijuana, whether treated as a misdemeanor or felony, should preclude an applicant from obtaining a license to carry a pistol or revolver under that Code Section.

Prepared by:

KYLE A. PEARSON
Assistant Attorney General

In Asberry v. State, 220 Ga. App. 40, 41 (1996), the Court of Appeals held that marijuana is not a controlled substance for the purpose of prosecuting the offense of possession of a firearm during the commission of a crime. The court specifically noted that the term "controlled substance" means a "drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308." Id. (citing O.C.G.A. † 16-13-21(4)). The court found that "[m]arijuana is not listed within any of the schedules contained in this definition." Id. Nevertheless, it appears that marijuana is listed in the federal Schedule I as "marihuana." 21 C.F.R. † 1308.11(d)(19)(1997).