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Possession of Drugs in Ohio: From Internal to External: From Seeds to Bricks

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, and amphetamines.

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 bottle(s).

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 in Limine).

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 – the wallet.

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