Being arrested and charged with a drug offense in Ohio is a life-altering event. With our nation’s “War on Drugs,” even after you have served your prison time and paid your fines, drug convictions on your record can prevent you from securing employment, renting an apartment, gaining a professional license, or getting a college degree. Moreover, under Ohio law, most drug convictions result in a 6 month to 5 year driver’s license suspension.
Because of the serious consequences and how they can impact the rest of your life, it is important to hire a criminal defense attorney if you have been arrested, or even being investigated, for a drug offense. Hiring an experienced and dedicated Columbus and Delaware, Ohio drug defense attorney to represent you is imperative. Drug charge defenses often turn on technical or nuanced areas of the law or arguing that law enforcement violated your constitutional rights. While any good defense strategy is going to be highly dependent upon the facts and circumstances of your particular case, there are common defenses to drug charges that are useful in attacking the prosecution’s case.
Drug Possession and Trafficking Defenses in Ohio
Failure to Meet the Required Elements
For drug possession cases, the prosecutor must prove beyond a reasonable doubt that you knowingly possessed an illegal substance and that you intended to possess it. Certain elements must be met in drug possession cases:
- You knew what the illegal substance was;
- You had it in your possession; and
- You intended to have it in your possession.
A good defense strategy will involve demonstrating that one of the above elements cannot be met. Knowledge and intent are subjective and, thus, it can be hard for the prosecutor to prove. However, it can be equally difficult to defend against. For example, if the police find marijuana on your person, it will be difficult to argue that you didn’t know it was there or didn’t intend to have it.
An area ripe for challenge is whether you actually had possession of the illegal substance. In order to be in possession of an illegal substance, one must be in actual or constructive possession. Actual possession is having physical control of the illegal substance on your person or in your possession. For example, if the illegal substance is in your pocket, you are in actual possession. Constructive possession requires 3 elements:
- You were aware that the substance was in the vicinity;
- You must know that the substance is illegal; and
- The illegal substance must be close enough to you to actually possess.
This concept of constructive possession involves dominion and control. To be in possession of a substance, your must be able to reclaim it. A common example where law enforcement will charge a person with drug possession is where the police conduct a search of your vehicle or residence and find drugs that belong to someone else. Since the drugs were in your car or residence, the police will arrest you and charge you with drug possession. The prosecutor will argue that you could reach into the backseat of your vehicle or into the backpack in your house and, therefore, you had constructive possession of the illegal substance.
Constructive possession is the easier of the two to defend against. If, for example, the illegal substance was found in a common area that a roommate had access to, or was found in your roommate’s bedroom, an argument could be made that you were not in possession of the drug.
Several defenses exist for drug trafficking in Ohio, with the most effective being lack of intent. Drug trafficking is a specific intent offense that requires knowledge, purpose and action in furtherance of the crime. This requires that at the time of the offense, the prosecution must prove that you had the required criminal intent to commit the offense. Absent this intent, the prosecution will have difficulty proving their case and the charges may be dismissed. However, as discussed above, knowledge and intent, while subjective, can also work against you under certain circumstances. Thus, if you are caught in a situation where you are exchanging money for an illegal substance, it will be difficult to prove that you lacked the intent to engage in drug trafficking.
Constitutional Rights Violation Defenses
Many drug cases are defended based on a violation of constitutional rights or flaws in the process, such as arresting you without reasonable suspicion that you committed a crime, or search your vehicle or home without probable cause that you were engaged in criminal activity and without a warrant. In particular, the 4th Amendment to the U.S. Constitution protects you against unreasonable searches and seizures. What this means in general is that law enforcement must obtain a search warrant to search you or your property and to obtain that search warrant they must have probable cause.
There are several exceptions to this general warrant requirement. Law enforcement can search your vehicle or home absent a warrant if there is evidence of criminal activity that is in plain view, such as a bag of marijuana sitting in your passenger seat when you are pulled over for running a stop sign. The police may also search your vehicle if you give voluntary consent. However, you have the right to refuse and should always do so.
Other practices may also violate your 4th Amendment rights. These include illegal stops, illegal surveillance or wiretapping, dog searches and illegal seizures or arrests. Law enforcement are not allowed to stop your vehicle unless there is a reasonable and articulable suspicion that your vehicle or the passengers are violating the law, including both criminal and traffic violations. However, the United States Supreme Court recently held that there does not have to be an actual violation if the police made a reasonable mistake regarding the law. For example, if the police stop your vehicle for one busted tail light and the officer believes this is a violation, the stop of your vehicle is not an illegal stop.
The 4th Amendment protects you against illegal surveillance and wiretapping. Surveillance or wiretapping invade a person’s right to privacy and the police must obtain a warrant when used in criminal investigations. For example, if the police obtain evidence against you be listening to your phone calls without a warrant, the evidence obtained may be inadmissible in court.
The police often use a dog to search for the presence of drugs. The officer must have a reasonable suspicion that there are drugs before bringing a drug-sniffing dog to conduct a search. Recently, the United States Supreme Court held that extending a routine traffic stop beyond the time necessary to conduct the stop so that a drug-sniffing dog could be utilized was a violation of the driver’s constitutional rights.
The police sometimes engage in an illegal seizure or arrest. Law enforcement must have a reasonable suspicion that you have committed a crime before they can arrest you. Ohio courts have held that the police cannot stop you based on a mere hunch that you are involved in criminal activity or that you are present in a bad neighborhood. Moreover, statements made by you to the police, even if voluntary, can be inadmissible in court if they result from your illegal detention.
Columbus and Delaware, Ohio Drug Defense Attorney
If you have been charged with a drug offense in Columbus or Delaware, Ohio, contact Attorney David Johnson of Johnson Legal, LLC to discuss your case. As an experienced and dedicated drug defense attorney, Attorney Johnson can help you fight the charge and achieve the best possible outcome. Call Attorney David Johnson at (614) 987-0192 or send an email to schedule a consultation to discuss your drug offense case.