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Discussion Starter · #1 ·
Hey, I'm new to the forum and have a question about liscense eligibility. I have a misdemeanor possesion of marijuana charge from 1990, but other than that I have a clean record. Would this disqualify me from getting a pistol permit? Thanks
 

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Then I am sorry my friend. Per our ridiculous laws you are ineligible for a Georgia Firearms License.

O.C.G.A. § 16-11-129 (b)(5)(A) said:
[No license or renewal license shall be granted to:] Any person, the provisions of paragraph (3) of this subsection notwithstanding, 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.
My suggestion would be to have it expunged from your record.
 

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Rammstein said:
Then I am sorry my friend. Per our ridiculous laws you are ineligible for a Georgia Firearms License.

O.C.G.A. § 16-11-129 (b)(5)(A) said:
[No license or renewal license shall be granted to:] Any person, the provisions of paragraph (3) of this subsection notwithstanding, 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.
My suggestion would be to have it expunged from your record.
It is my understanding that you can't get a conviction expunged. All you can get expunged is arrest that were dismissed prior to trial. I don't think that you can even get an arrest expunged in which you were found not guilty at trial. This is based on the Georgia rules.

--

I think that the only thing you could do is to petition the Pardon and Parol Board for a "restoration of rights". Stuff in Alabama is most likely different, and I doubt that the Gerogia board can do something with an Alabama conviction.
 

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UNOFFICIAL OPINION U97-29

To: Probate Judge of Decatur County October 1, 1997

Re: For the purposes of O.C.G.A. †16-11-129, marijuana is a controlled substance such that a conviction arising out of the possession thereof should preclude an applicant from obtaining a license to carry a pistol or revolver.

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).
http://www.georgiapacking.org/ga-ag/u97-29.htm
 

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UNOFFICIAL OPINION U2005-3

To: County Attorney July 7, 2005

Re: Drug offenders who are later pardoned are ineligible to obtain a license to carry a concealed pistol or revolver pursuant to O.C.G.A. § 16 11 129, although they are permitted to possess a pistol or revolver inside their home, vehicle, or place of business without violating Georgia law.

You have asked whether a probate court may issue a firearms license pursuant to O.C.G.A. § 16 11 129 to a person who has been convicted of a drug offense and who is later pardoned and expressly authorized by the State Board of Pardons and Paroles to receive, possess, or transport a firearm. See O.C.G.A. § 16 11 131(c). For the reasons set forth herein, it is my unofficial opinion that the probate court may not issue a firearms license to such a person.

While the right to keep and bear arms is generally secured by the Second Amendment to the United States Constitution, individual states and the federal government may regulate citizens’ rights to possess and carry a firearm. Presser v. Illinois, 116 U.S. 252 (1886). Pursuant to that authority, the Georgia General Assembly has developed a two-tiered approach in determining who may possess a firearm, and who may further be afforded the privilege of being licensed to carry a firearm in a concealed manner.

In Georgia, the right to possess a firearm in a home, vehicle, or place of business does not require a license. See O.C.G.A. §§ 16 11 126 and 16 11 128. Rather, as noted in those Code sections, Georgia law merely prohibits certain persons from possessing any firearm. A license issued pursuant to O.C.G.A. § 16 11 129 authorizes a person to carry a firearm in a concealed manner outside a home, vehicle, or place of business. The lack of a license issued pursuant to O.C.G.A. § 16 11 129 does not prevent a person from possessing a firearm otherwise in conformity with the law.

On the question of who may possess a firearm, as noted above, Georgia law specifically prohibits any unpardoned felon or person on first offender probation from possessing a firearm. See O.C.G.A. § 16 11 131. Those persons not disqualified from possessing a firearm by O.C.G.A. § 16 11 131 must then be approved by the county probate court to receive a license to carry a firearm in a concealed manner pursuant to O.C.G.A. § 16 11 129. Georgia law specifically excludes certain persons otherwise eligible to possess a firearm from obtaining a license pursuant to O.C.G.A. § 16 11 129, including persons under age 21, unpardoned felons, and those pardoned felons who are convicted of offenses involving controlled substances. See O.C.G.A. § 16 11 129(b).1

It is well settled that a specific statute will prevail over a general statute unless there is indication of a contrary legislative intent. Garden Hills Civic Association, Inc., v. MARTA, 273 Ga. 280 (2000). Georgia’s statutory scheme clearly establishes that the requirements to be licensed to carry a firearm in a concealed manner outside one’s home, vehicle, or place of business are more stringent than the minimal restrictions on the mere possession of a firearm. Plainly, then, the more specific requirements of O.C.G.A. § 16 11 129 would prevail, to the extent of any conflict, over the more general restrictions found in O.C.G.A. § 16 11 131.

Moreover, a later enacted statute is presumed to be enacted with full knowledge of any existing statutes. State v. Davis, 246 Ga. 761 (1980). Such statute should be construed in harmony with the existing law, and the meaning and effect will be determined in connection with those previously enacted statutes. Id. This canon of statutory construction is helpful in this instance, wherein O.C.G.A. § 16 11 129(b)(5)(A), which prohibits a pardoned convicted felon from obtaining a license, was enacted in 1990, ten years after the statute which authorizes a pardoned convicted felon to possess a firearm. See O.C.G.A. § 16 11 131. Thus, an examination of the differing legislative objectives of these two statutory provisions further reveals the intent of the General Assembly to further restrict those persons with drug convictions from being licensed to carry firearms.

Your inquiry alludes to a contradiction between O.C.G.A. § 16 11 129 and O.C.G.A. § 16 11 131; when read in pari materia, however, those two provisions can be harmonized. Official Code of Georgia Annotated § 16 11 129(b)(3) generally provides that probate courts may issue a license to carry a firearm to a person convicted of any felony if that person has received a pardon. Pursuant to O.C.G.A. § 16 11 129(b)(5)(A), however, if the conviction is for an offense arising out of the unlawful manufacture, distribution, possession, or use of a controlled substance or dangerous drug as defined therein, that person may not receive a license pursuant to that Code section, even if the person receives a pardon for that conviction. Official Code of Georgia Annotated § 16 11 131 only protects the convicted felon who has been pardoned from being charged with the crime of possession of a firearm by a convicted felon; it does not afford him the privilege of obtaining a license to carry that firearm in a concealed manner outside his home, vehicle, or place of business.2

In summary, it is my unofficial opinion that a probate court may not issued a license pursuant to O.C.G.A. § 16 11 129 to a person convicted of a drug offense as that is described in O.C.G.A. § 16 11 129(b)(5)(A), even if that person has been pardoned.

Prepared by:

Kay Baker
Assistant Attorney General

--------------------------------------------------------------------------------

1 Marijuana is considered a controlled substance as that is defined in O.C.G.A. § 16 11 129(b)(5)(B)(i). See 1997 Op. Att’y Gen. U97-29.

2 Fain v. State, 259 Ga. 708 (1989) does not affect the above analysis of a controlled substance violation as defined in O.C.G.A. § 16 11 129(b)(5)(A) because the court in Fain was reviewing a non-forcible felony conviction, and not a controlled substance conviction.
http://www.georgiapacking.org/ga-ag/u05-3.htm
 

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The Expunging of a trial for Alabama may be different than in Georgia.

Basically you need to find out if there is anyway you record in Alabama can be completly erased (from a background check). If there is no way, then you are out of luck.
 

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bbd924 said:
Hey, I'm new to the forum and have a question about liscense eligibility. I have a misdemeanor possesion of marijuana charge from 1990, but other than that I have a clean record. Would this disqualify me from getting a pistol permit? Thanks
Do you recall if you were charged with a state law violation or a city ordinance violation? If the latter, there is a possibility that the case was not reported and included in your criminal record. Some jurisdictions do not keep statewide records on municipal infractions. If you don't know, then you may want to find out.
 

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Discussion Starter · #12 ·
It was a violation where I went to court and pled guilty.
After researching today, I found out Alabama does not expunge or remove any misdemeanors from records. The crazy thing is, I had a pistol permit when I lived in Alabama, where the conviction was, and now cannot get one in Georgia. thanks for the help, guess im out of luck.
 

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bbd924 said:
It was a violation where I went to court and pled guilty.
After researching today, I found out Alabama does not expunge or remove any misdemeanors from records. The crazy thing is, I had a pistol permit when I lived in Alabama, where the conviction was, and now cannot get one in Georgia. thanks for the help guess im out of luck.
Is there any procedure for petitioning for a pardon in AL?
 

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bbd924 said:
It was a violation where I went to court and pled guilty.
After researching today, I found out Alabama does not expunge or remove any misdemeanors from records. The crazy thing is, I had a pistol permit when I lived in Alabama, where the conviction was, and now cannot get one in Georgia. thanks for the help, guess im out of luck.
Do you remember if it was a municipal court of some kind, or a court of general jurisdiction?
 

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legacy38 said:
bbd924 said:
It was a violation where I went to court and pled guilty.
After researching today, I found out Alabama does not expunge or remove any misdemeanors from records. The crazy thing is, I had a pistol permit when I lived in Alabama, where the conviction was, and now cannot get one in Georgia. thanks for the help guess im out of luck.
Is there any procedure for petitioning for a pardon in AL?
Unless the pardon completely erases the record (so the background check is clean) then it does not matter. Even with a pardon for a drug conviction you are still not eligible.
 

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Discussion Starter · #16 ·
It was Phenix City municipal court I think. I had to go to recorders court.

I've just sent an e-mail to the Alabama pardons and parole board. I'll see how that goes. thanks
 

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I had a pistol permit when I lived in Alabama, where the conviction was, and now cannot get one in Georgia.
You can probably still get a permit from several states, GA is just draconian when it comes to drugs and the GFL.
 

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GAGunOwner said:
I had a pistol permit when I lived in Alabama, where the conviction was, and now cannot get one in Georgia.
You can probably still get a permit from several states, GA is just draconian when it comes to drugs and the GFL.
Just remember that Georgia's permit is the only one you can use in Georgia, if you live in Georgia.
 

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jrm said:
You might want to check your own AL criminal history and see what shows up. As I said before, a municipal court (or recorder's court) conviction may not go any further than that court's own files.
Please listen to jrm on this one. You need to find out if this is something on your actual criminal record. City violations do not generally count.

Your need to obtain your own criminal record.

Do we have a thread on here instructing people on how to run their own criminal record? If not, maybe we should do that.
 
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