Jagrutiben Patel v. State of Georgia

• Court: Court of Appeals of Georgia
• Decided: March 14, 2025
• Docket: A24A1477
• Status: Published

Opinion

FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, P. J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

March 14, 2025

In the Court of Appeals of Georgia A24A1477. PATEL v. STATE OF GEORGIA.

MCFADDEN, Presiding Judge.

Jagrutiben Patel appeals from a judgment in favor of the state on its petition

seeking forfeiture of currency in connection with the possession and sale by Patel’s

convenience store of edible products containing delta-8-THC. She argues, among

other things, that the trial court erred because the state “failed to carry its burden of

proof to support its forfeiture petition.” We agree that the state did not present

evidence to meet its “burden of proof . . . to show by a preponderance of the evidence

that seized property is subject to forfeiture.” OCGA § 9-16-17 (a) (1). So we reverse

the judgment. Given this disposition, we do not reach Patel’s other enumerations of

error. 1. Facts and procedural history

The state filed a petition for forfeiture under OCGA §§ 9-16-12 of the Uniform

Civil Forfeiture Procedure Act and 16-13-49 (b) of the Georgia Controlled Substances

Act, asserting that law enforcement officers had executed a search warrant at Patel’s

store and had discovered various delta-8-THC products that the state alleged were

controlled substances and, therefore, contraband. The state asserted that it had seized

an amount of currency that was subject to forfeiture because it “was directly or

indirectly used or intended for use to facilitate the possession, storage, and

distribution of [the] products . . . and/or is proceeds derived or realized therefrom

and/or was found in close proximity to the products. . . .” See OCGA § 16-13-49 (b)

(2); (5). In response, Patel asserted that the products were not contraband because

they were “hemp” or “hemp products” that did not fall within the definition of a

controlled substance.

After a series of motions and rulings that are not pertinent to our disposition of

this appeal, the case proceeded to an evidentiary hearing. Evidence was presented that

Patel’s store possessed and sold edible products infused with delta-8-THC, which the

parties stipulated is a “tetrahydrocannabinol substance which may be contained in the

2 plant [C]annabis sativa L.” and “may be a derivative of [C]annabis sativa L.”

Evidence was also presented that the products were in proximity to the seized

currency inside the store.

The trial court found, among other things, that the state had established a

presumption that the products were contraband because they contained THC and that

Patel had failed to rebut that presumption by showing that they were “hemp” or

“hemp products.” So the trial court entered judgment for the state. Patel appeals.

2. Analysis

The Georgia Controlled Substances Act provides that controlled substances,

proceeds from the sale of controlled substances, and property found in close proximity

to controlled substances are contraband subject to forfeiture in accordance with the

procedures set forth in Uniform Civil Forfeiture Procedure Act. OCGA § 16-13-49

(b), (c). Under the Uniform Civil Forfeiture Procedure Act, “[t]he state’s burden of

proof shall be to show by a preponderance of the evidence that seized property is

subject to forfeiture.” OCGA § 9-16-17 (a) (1). The Uniform Civil Forfeiture

Procedure Act recognizes a rebuttable presumption that property is subject to

forfeiture. OCGA § 9-16-17 (b). But to be entitled to that presumption, the state is

3 required to establish by a preponderance of the evidence that, among other things, the

person whose property is at issue “has engaged in conduct giving rise to forfeiture[.]”

OCGA § 9-16-17 (b) (1).

The state’s assertion that Patel had engaged in conduct giving rise to forfeiture

was premised on its claim that the products infused with delta-8-THC were controlled

substances. So to prevail on its forfeiture petition, the state was required to show by

a preponderance of the evidence that the products were controlled substances. Only

then would the state be entitled to the rebuttable presumption of OCGA § 9-16-17 (b)

(1) that the property was subject to forfeiture.

The state did not present evidence to meet this burden. While there was

evidence that the products were infused with THC, not all THC is a controlled

substance. The Georgia Controlled Substances Act defines the term “controlled

substance” to mean “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 CFR Part 1308.” OCGA § 16-13-21 (4). And it defines Schedule I controlled

substances to include:

Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinolic acid which does not contain plant material

4 exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products as such terms are defined in Code Section 2-23-3 [of the Georgia Hemp Farming Act].

OCGA § 16-13-25 (3) (P) (emphasis supplied). Thus, if a product falls within the

definition of “hemp” or “hemp product” under the Georgia Hemp Farming Act,

then it is not a controlled substance even if it contains THC.

In this case the question is whether the products constituted “hemp.” We do

not consider whether they fell within the definition of “hemp products” because at

the time of the proceedings below, the Georgia Hemp Farming Act defined “hemp

products” to exclude “food products infused with THC unless approved by the

United States Food and Drug Administration.” OCGA § 2-23-3 (6) (2021). The

parties stipulated that the products in this case were edible gummies infused with

THC, the trial court held that they were food products that had not been approved by

the FDA, and Patel does not contest that holding. Instead, she argues that we should

apply retroactively an amendment to the Georgia Hemp Farming Act that eliminated

the requirement for FDA approval from the definition of “hemp products.” See

OCGA § 2-23-3 (13). We cannot do so because the amendment went into effect on

5 October 1, 2024, after the trial court entered judgment in this case, and the statutory

text does not indicate that the amendment should be applied retroactively. See Deal

v. Coleman, 294 Ga. 170, 174-175 (1) (b) (751 SE2d 337) (2013) (“Generally speaking,

the retroactive application of statutes has long been disfavored in the law, even if it is

not always forbidden. For that reason, courts usually insist upon some clear indication

in the statutory text that a statute is to be applied retroactively before so applying it.”)

(citations, punctuation, and footnote omitted).

We now turn to whether the evidence presented to the trial court demonstrates

that the products in this case fell outside the definition of “hemp.” It does not. At the

time of the proceedings below, the Georgia Hemp Farming Act defined “hemp” as

“the Cannabis sativa L. plant and any part of such plant, including the seeds thereof

and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,

whether growing or not, with the federally defined THC level for hemp or a lower

level.” OCGA § 2-23-3 (5) (2021). The “‘[f]ederally defined THC level for hemp’

mean[t] a delta-9-THC concentration of not more than 0.3 percent on a dry weight

basis, or as defined in 7 U. S. C. Section 1639o, whichever is greater.” OCGA § 2-23-3

(3) (2021). (Delta-9-THC is another tetrahydrocannabinol substance that has a

6 different chemical structure from delta-8-THC. See Elements Distrib. v. State of Ga.,

369 Ga. App. 844, 847 (2) (894 SE2d 641) (2023) (physical precedent only).)

In other words, the version of the Georgia Hemp Farming Act in effect at the

time defined hemp to encompass products containing “the Cannabis sativa L. plant

and any part of such plant” unless they contained more than 0.3 percent of delta-9-

THC. OCGA § 2-23-3 (5) (2021). This means that the presence of delta-8-THC alone

is not enough to remove a product from the definition of “hemp” under OCGA § 2-

23-3 (5) (2021) and render it a controlled substance under OCGA § 16-13-25 (3) (P);

to be a controlled substance it must also contain more than a 0.3 percent concentration

of delta-9-THC. To the extent the trial court held that the presence of delta-8-THC

alone rendered the products in this case controlled substances, he erred.

Instead, to show that a product containing THC fell outside the applicable

definition of hemp, and thus was a controlled substance, the state was required to

show not just that it contained delta-8-THC, but also that it contained the necessary

concentration of delta-9-THC. But the state presented no evidence establishing the

concentration of delta-9-THC in any of the products at issue. Consequently, it did not

establish by a preponderance of the evidence that the delta-8-THC-infused products

7 in this case were controlled substances rather than hemp under OCGA § 16-13-25 (3)

(P). It follows that the state did not establish that Patel had engaged in any conduct

giving rise to forfeiture, which it was required to do by OCGA § 9-16-17 (b) (1) before

it was entitled to a presumption that Patel’s property was subject to forfeiture.

For this reason, we agree with Patel that the state “failed to carry its burden of

proof to support its forfeiture petition[,]” and so we reverse the trial court’s judgment

in favor of the state.

Judgment reversed. Rickman, P. J., concurs specially and Mercier, C. J., concurs in

judgment only.

RICKMAN, Presiding Judge, concurring specially.

I concur with the majority opinion that the state failed to carry its burden of

proving that Patel engaged in conduct giving rise to forfeiture, and that the trial court

erred by granting the petition seeking forfeiture of currency seized from her

convenience store. I write separately to further explain why, on the record before us,

the state failed to show that the delta-8-THC contained in the products sold by Patel

was a controlled substance as defined by Georgia law and, consequently, failed to

present a prima facie case that the seized funds were subject to forfeiture. Georgia law in this area continues to evolve. In 2019, the Georgia General

Assembly passed the Georgia Hemp Farming Act, which adopted the federal

definition of hemp and hemp products and permitted their cultivation and sale under

certain circumstances. See OCGA § 2-23-1 et seq. In November 2021, the Georgia

Controlled Substances Act included THC in its list of Schedule I controlled

substances, but explicitly exempted THC “when found in hemp.” See OCGA § 16-

13-25 (3) (P). The Georgia Hemp Farming Act defined “hemp” as “the Cannabis

sativa L. plant and any part of such plant, including . . . all derivatives, extracts, [and]

cannabinoids . . ., with [a delta-9-THC concentration of not more than 0.3 percent on

a dry weight basis].” OCGA § 2-23-3 (5) (2021); see 7 USCA § 1639o (1).

With respect to the products containing delta-8-THC seized by law

enforcement from Patel’s store and used to sustain the state’s petition of forfeiture,

Patel submitted affidavits from a pharmacologist and a board-certified technologist in

chemistry, both of whom explained that delta-8-TCH is a naturally occurring

cannabinoid compound commonly derived from the hemp Cannabis sativa L. plant.

The parties expressly stipulated to the same. Thus, naturally-occurring delta-8-THC

is a hemp derivative and, under the plain language of the governing statute during the

relevant time period, was not considered a controlled substance under Georgia law so 2 long as it contained a delta-9-THC concentration of not more than 0.3 percent. See

OCGA §§ 2-23-3 (5) (2021); 16-13-25 (3) (P).

Nevertheless, the trial court noted that delta-8-THC may also be produced

synthetically “from non-cannabis materials,” and that synthetically-produced delta-

8-THC may not have been exempted from the list of Schedule I controlled substances.

See AK Futures LLC v. Boyd Street Distro, LLC, 35 F4th 682, 692 (9th Cir. 2022)

(citing a letter from the Drug Enforcement Agency stating that “synthetic” delta-8-

THC is produced “from non-cannabis materials” and thus remains banned). Based

on that possibility, the trial court afforded the state a rebuttable presumption that the

products seized from Patel’s store containing delta-8-THC were Schedule I controlled

substances, and placed on Patel the burden of proving that those products contained

naturally-occurring, as opposed to “synthetic,” delta-8-THC. In doing so, the trial

court erroneously relieved the state of its burden to prove by a preponderance of the

evidence that Patel violated the Georgia Controlled Substances Act. See OCGA § 9-

16-17 (b); State v. Foote, 225 Ga. App. 222, 224 (2) (483 SE2d 628) (1997) (“[T]he

[s]tate [must] prove a violation of the Georgia Controlled Substances Act . . . before

any property interest may be subject to forfeiture. . . . Obviously, this requirement is

3 not an ‘exception’ to forfeiture, but is an essential element of proof if the [s]tate

intends to proceed under the statute.”) (emphasis omitted).

In sum, the only evidence in the record before this Court, by way of affidavits

and the parties’ stipulations, is that the delta-8-THC contained in the products seized

from Patel’s store may have been naturally derived from the hemp cannabis plant and,

therefore, may not have been a Schedule I controlled substance. And, as discussed in

the majority opinion, the state presented no evidence that the products contained an

unlawful concentration of more than 0.3% delta-9-THC. As such, the state failed to

establish by a preponderance of the evidence that Patel’s property was subject to

forfeiture, and the trial court erred by holding otherwise.