Open the local newspaper, turn on the T.V. or radio and every day you will
read or hear or see that someone in Ohio has been arrested for possession
of drugs. In Crawford, Wyandot, Seneca, Marion and Richland County, the
business of possessing drugs has become a costly, sometimes deadly affair.
However, possessing illegal substances goes well beyond carrying, for
instance, a balloon of heroin in your purse or your pocket. Rather, the
most common form of possession of drugs that I have come across in my
practice has been internal possession whereby a Defendant has illegal
drugs in his or her body due to recent use.
In most instances, an individual is arrested on suspicion of a different
offense (i.e. drug trafficking, burglary, theft, receiving stolen property)
or even on an outstanding warrant. However, in the course of the arrest,
law enforcement will ask whether he or she uses drugs. If the answer is
yes, the officer will go on to ask a series of other questions: when did
he or she last use; and/or where did he or she use? Too often the inquiry
ends there. Based upon the answers to those questions – without
a drug screen or even photographs of track marks – the arrestee
can then add possession of drugs to his or her list of reasons for being
incarcerated or otherwise arrested.
At that point, depending upon what the individual admitted to having in
his or her system, the offense can be classified as highly as a felony
internal possession of illicit substances in violation of Ohio Revised
Code §2925.11. Ohio has adopted a slightly modified form of the federal
government drug “schedule” classifications. The following
system of schedules is used to determine the seriousness of the offense,
and consequently, the seriousness of the potential sentence:
Schedule I drugs include those that are the most dangerous and have a high risk of
addiction or dependency and no legitimate medical use. Drugs included
under this heading include LSD, heroin, GHB, and ecstasy.
Schedule II substances still have a high risk of abuse but may have legitimate medical
uses. These include things like opium, cocaine, methadone, methamphetamines,
Schedule III drugs are slightly less dangerous than Schedule II substances, but still
have a moderate risk of abuse. Schedule III substances include hydrocodone,
codeine, anabolic steroids, testosterone, ketamine, and some depressants.
Schedule IV drugs have a slight risk of dependency and have very acceptable medical
uses. Some Schedule IV drugs are clonazepam, some tranquilizers, and sedatives.
Schedule V substances have a very low risk of dependency and include things like
over the counter medication with Codeine.
With regard to internal possession, the highest level felony with which
you can be charged is a fifth degree felony which carries a potential
maximum penalty of one (1) year in prison.
For first time offenders, under Ohio House Bill 86 passed and enacted in
2011, anyone convicted of a first offense felony aggravated drug possession
can be sentenced to no more than five (5) years Community Control (i.e.
probation) – with a potential prison sentence hanging over his or
her head - and, under certain circumstances, the offender may be eligible
for intervention/ treatment in lieu of conviction. In those situations,
the Defendant pleads guilty to the offense, but the court “holds”
his or her guilty plea to afford him or her an opportunity to complete
a state-certified drug treatment program. If he or she completes the treatment
program and any other required follow-up treatment, counseling and/or
other sanctions, the court then dismisses the underlying charge –
much akin to a pretrial diversion program.
Beyond “internal” possession, those who are found to have large
or bulk amounts of illegal drugs in their possession, home, car, purse
or anywhere within his or her control may be charged with as much as a
first degree felony – punishable up to eleven (11) years in prison.
This is where Ohio law becomes extremely complex. For instance, the bulk
amount of methadone is different than the bulk amount of a Schedule II
opiate derivative which is different than the bulk amount of Schedule
III opiate derivative.
However, most important for the everyday citizen is to remember that if
you are carrying your prescription medications in your purse, you better
be carrying them in their prescription containers. If not, you run a high
risk of being charged with illegal possession of drugs in Ohio. Yes, that
means if grandma, grandpa, mom, or dad are carrying his or her prescriptions
in the store-bought daily medicine containers - that are available at
every drug-store and Wal-Mart across the country – and they get
stopped on the street or, as more often occurs, gets pulled over for a
traffic violation, they can be charged with illegal possession of illicit
substances for not having their medication in its appropriate prescription
Regardless, under any circumstance, anyone charged with or suspected of
any crime involving the possession of illegal substances should always
assert their fifth amendment right to remain silent until he or she is
represented by counsel and refuse to consent to any search of his or her
person – beyond a standard pat down, purses, vehicles, or homes
from the moment law enforcement begins to ask any question which may infer
that he or she suspects you have drugs in your possession whether internally
or not. This is where the accused aids the lawyer in his or her defense.
By staying quiet and demanding that the officer produce a warrant - or
a reason why a warrant is not necessary – the potential Defendant
sets up his or her attorney’s basis for a motion to suppress evidence.
In addition, a properly trained and skilled criminal defense attorney will
be able to review the investigation, forensic testing (if any is conducted),
the manner in which the client is arrested and evidence was handled. In
doing so, the lawyer will determine whether law enforcement violated your
constitutional rights and/or its own policies and procedures; failed to
abide by the newly enacted R.C.§2933.81 requirements for the recording
of an accused’s statement, line-ups, show-ups, and other forms of
eye-witness identification; failed to properly handle evidence in accordance
with national chain of custody standards; and/ or whether a forensic laboratory
conducted its chemical testing in accordance with the national and state
standards. For instance, in order to provide our clients with the highest
level of representation, our office has spent several hours of continuing
legal education and seminars on forensic evidence contamination, proper
chemical testing procedures, chain of custody procedures, and the use
of pretrial motions (i.e.
Daubert/ Evid.R. 702 Motions, Motions for Defense Expert Fees, Motions to Suppress
and other Motions
With drug cases – as with any other criminal case – time is
always of the essence. If you or someone you know is being charged with
or under suspicion of drug possession, immediately contact and retain
an experienced criminal defense attorney. Our office is always available
and can be contacted 24/7 through our website to travel anywhere in the
state of Ohio and in the federal courts to vigorously defend any drug
case of any nature. From a minor misdemeanor to first degree felony, our
office knows that a drug offense is black mark on a client’s record
that can, not only life and liberty, but employment, a client’s
driver’s license; and under the new mandatory minimum drug fine
schedules, a drug offense can hit a client where it really hurts –