The Ohio Revised Code (ORC) has statutes that govern activities such as possessing marijuana (2925.11), selling marijuana (2925.03) and growing marijuana (2925.04). All of these statutes determine the level of offense a person will be charged with primarily by the weight, in grams, of marijuana that is seized. However, what is used to measure the actual “weight”?

How marijuana is weighed seems to be obvious (i.e., weigh the amount of marijuana), however, when we dive deeper into the question, other issues arise. How do we classify what marijuana is? Is it only the narcotic portion of the plant, or the entire plant? What happens if the plant has been recently trimmed and contains no narcotic portion? Do the police have to wait for the plant to dry out before weighing it, or can law enforcement weigh the plant as seized? These questions become vital because the amount of marijuana that is seized and weighed can result in significantly different penalties, from misdemeanor penalties with no jail time to mandatory prison and significant fines.

Defining Marijuana in Ohio

Marijuana is classified as a Schedule I controlled substance under federal and Ohio law. Pursuant to ORC 3719.01(O), marijuana includes:

All parts of a plant of the genus cannabis, whether growing or not; the seeds of a plant of that type; the resin extracted from a part of a plant of that type; and every compound, manufacture, salt, derivative, mixture, or preparation of a plant of that type or of its seeds or resin. ‘Marihuana’ does not include the mature stalks of the plant, fiber produced from the stalks, oils or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from the mature stalks, fiber, oil or cake, or the sterilized seed of the plant that is incapable of germination.”

After reading this very long definition of what marijuana is and is not under Ohio law, you would think that certain portions of the plant, such as the stalks, would not be included when law enforcement weighs the amount of marijuana a person possesses. However, Ohio courts have taken a more nuanced interpretation of this section as it pertains to the weighing of marijuana in criminal cases.

Ohio Case Law

The case of State v. Wolpe is the grandfather of the line of cases grappling with the issue of whether the state has the burden of separating from the marijuana the material that is statutorily excluded from the definition of marijuana. In Wolpe, the defendant was pulled over by the police, who found 390 grams of marijuana in his car. The defendant argued that the state was required to establish that the weight of the marijuana did not include those parts of the marijuana which are statutorily excluded. The defendant proposed that the state was required to separate all the excluded material from the marijuana prior to it being weighed to determine its amount. The state, however, argued that the statute did not require police to separate out the excluded and non-excluded portions of the marijuana before weighing the amount of marijuana.

The Court held that the General Assembly intended that in order for certain parts of the marijuana plant to be excluded, those parts must have already been separated from the non-excluded portions of the plant. The court reasoned that the first sentence of the definition of marijuana included “all parts” of the marijuana plant. The exclusion only applies where the substance is found to consist solely of mature stalks, seeds or otherwise excluded material. Thus, the state has no burden to separate any statutorily excluded portions of the plant from the marijuana that is seized.

The holding of Wolpe has been reinforced by subsequent case law. One year after the holding in Wolpe, the Ohio Supreme Court reaffirmed its holding in State v. Davis. In the 30 years since Davis, the Ohio Supreme Court and Court of Appeals around the state have continued to uphold Wolpe.

In 2014, the issue was raised again, but in a slightly different context. The case of State v. Hartkemeyer raised the issue of whether a defendant can argue a different weight at trial. Hartkemeyer was charged with 2nd degree felony possession of marijuana, along with a number of other offenses. He filed a motion to have the state reweigh the marijuana because it was weighed while wet and the entire marijuana plant was being weighed. Hartkemeyer also argued that Wolpe does not preclude a defendant from having the marijuana reweighed without the stalks and stems, and being able to present this evidence at trial. The state, by contrast, argued that the marijuana must be weighed in the condition it is found and the defendant is not permitted to introduce evidence of an alternate weight.

The Court of Appeals held that Hartkemeyer was not entitled to have the marijuana reweighed without the stalks, stems and other non-narcotic portions of the marijuana plant. The court went on to reiterate Wolpe and emphasized that for certain parts of the marijuana plant to be excluded, those parts must have already been separated from the non-excluded portions of the plant. The court specifically stated that:

“Subsequent appellate case law has consistently interpreted Wolpe and Davis to mean that the parts of marijuana plant that are excludable pursuant to the statutory definition must be physically separated from the rest of the plant while in the possession of the defendant in order to be excluded from the calculation of weight.” See State v. West, State v. Jarrells and State v. Rotaru.

Summary

While the statute is relatively clear on what portions of the marijuana plant is actually considered to be marijuana in Ohio, the courts have taken a different approach. Instead of looking at the language of the statute, Ohio courts have looked at the legislative intent behind the definition of marijuana. This has led to the inclusion of non-narcotic portions of the marijuana plant into the calculation of the amount of marijuana a person possesses and, thus, the level of offense the person is charged with.

What does this mean for someone arrested for marijuana possession, cultivation, or trafficking? If you are arrested for a marijuana offense, and the marijuana that is seized has not been trimmed (i.e., narcotic portions removed from the plant), the entire weight of the plant will be factored into what level of offense you are charged with. If the plant has been trimmed, only the portions that have been trimmed are included in the calculation of weight and, thus, the level of offense to be charged. Additionally, if the plant is wet, the police are not required to wait for the plant to dry out. Finally, the defendant is not permitted to have the marijuana reweighed (i.e., without the stalks and non-narcotic portions) before trial and present the reweighed amount to a jury.

Columbus and Delaware, Ohio Criminal Defense Attorney

If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your criminal offense case.