Possession is a necessary predicate for a number of criminal offenses in Ohio, such as possession of marijuana, marijuana trafficking, illegal cultivation of marijuana and drug paraphernalia. This article will discuss these offenses in detail, including the elements of each offense, penalties for each offense and possible defense strategies.
Elements of the Offense
Pursuant to ORC 2925.11, it is illegal to knowingly obtain, possess or use marijuana. Thus, the required element of knowledge and/or a reasonable belief that the substance is marijuana is required. Knowledge means the specific intent or purpose to possess marijuana.
A person must have actual or constructive possession of a controlled substance in order to be charged with drug possession in Ohio. Actual possession is having physical control of the controlled substance on your person or in your possession. For example, if the controlled substance is in your pocket, you are in actual possession of a controlled substance. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within the individual’s immediate physical possession.
Trafficking in Marijuana
Pursuant to ORC 2925.03, no person shall sell or offer to sell marijuana. Moreover, no person shall prepare for shipment, ship, transport, etc. marijuana when the person knows or has reasonable cause to believe to know that the marijuana is intended for sale. Both types of actions constitute marijuana trafficking.
Thus, under Ohio law, “knowingly” and “reasonable cause” are elements that the prosecution must prove beyond a reasonable doubt. “Knowingly” means having awareness, purpose and intent to act. To act “knowingly,” a person must contemplate the action and act in furtherance of that intent. “Reasonable cause” is based on what an average person would believe if under the same circumstances.
Illegal Cultivation of Marijuana
Illegal cultivation of marijuana is governed by ORC 2925.04 and is defined as knowingly cultivating, preparing, producing, growing or manufacturing marijuana or substances containing marijuana. The “knowingly” element means that the person must have the specific intent to commit the crime. The offender must knowingly or have a reasonable belief that the substance being cultivated is marijuana.
Marijuana Drug Paraphernalia
Possessing or using drug paraphernalia in Ohio will result in a 4th degree misdemeanor. However, Ohio law makes a special allowance for marijuana drug paraphernalia. Pursuant to ORC 2925.141, it is illegal for a person to knowingly use, or possess with purpose to use, any equipment, product or material that the person uses, intends to use, or is designed to be used to introduce marijuana into the human body. Common items that fall under this prohibition include:
- A scale used to weigh controlled substances.
- An object or device (i.e., water pipes, bongs, etc.) used to ingest, inhale or otherwise introduce marijuana into the human body.
- Envelopes, bags or containers for packaging marijuana.
- Separation gin or sift for removing twigs and seeds from marijuana.
- Grinders used to shred marijuana.
In addition to the potential for jail or prison time and fines that are discussed further down, marijuana offenses in Ohio have several penalties that are common to every type of offense. These include a mandatory driver’s license suspension of 6 months to potentially several years, difficulty securing or maintain employment, ineligibility for student loans, suspension or revocation of certain professional licenses (e.g., lawyers, nurses, teachers, etc.) and jeopardizing government assistance.
Possession of marijuana can be charged anywhere from a minor misdemeanor to a 2nd degree felony in Ohio. Whether a prison sentence is imposed depends upon several factors, such as the amount in your possession, your previous criminal history, whether you have a chemical dependency on marijuana and where the offense was committed.
For less than 100 grams of marijuana, the offense will be a minor misdemeanor, which only carries a $150 fine. However, it will also mandate a 6 month driver’s license suspension. For 100-199 grams, the offense is a 4th degree misdemeanor. The level of offense carries up to 30 days in jail and a $250 fine. For anything above 199 grams, the offense will be a felony and a prison term becomes more likely. Click here for a complete breakdown of the offense levels for marijuana possession in Ohio.
Trafficking in Marijuana
Trafficking in marijuana is most often charged as a felony. However, it can be charged both as a minor misdemeanor if the offense involves a gift of 20 grams or less of marijuana, or as a 3rd degree misdemeanor for any subsequent offense involving a gift of 20 grams or less of marijuana.
The level of offense for trafficking in marijuana will depend upon the amount allegedly trafficked. If the marijuana allegedly trafficked is less than 200 grams, the offense will be a 5th degree felony, which carries potentially 6-12 months in prison and a $2500 fine. However, a community control (i.e., probation) sanction could be imposed if all of the following apply:
- The offender has not been convicted of a felony offense;
- The most serious charge against the offender is a 4th or 5th degree felony;
- A program administering community control sanctions must be available; and
- The offender has not been convicted of a misdemeanor offense of violence in the prior 2 years.
Trafficking in marijuana can also be charged as a 4th, 3rd, 2nd or 1st degree felony based upon the amount of marijuana trafficked and whether the offense occurred near children or a school. Click here for a complete breakdown of the offense levels for trafficking in marijuana in Ohio.
Illegal Cultivation of Marijuana
Illegal cultivation of marijuana can be charged anywhere from a minor misdemeanor to a 2nd degree felony. If the amount is less than 100 grams and is not grown in the vicinity of a school or juvenile, the offense will be a minor misdemeanor, which carries only a $150 fine. If the amount is 100-199 grams, the offense will be a 4th degree misdemeanor. This level of offense carries up to 30 days in jail and a $250 fine.
Once the amount of marijuana being cultivated exceeds 199 grams, the offense will be charged as a felony. The level of offense will vary from a 5th degree felony to a 2nd degree felony based upon the amount of marijuana cultivated and whether it occurred near a school or juvenile. Depending upon the level of offense, a mandatory prison term will occur upon your conviction. Click here for a complete breakdown of the offense levels for illegal cultivation of marijuana in Ohio.
Marijuana Drug Paraphernalia
Possession of marijuana paraphernalia in Ohio is a minor misdemeanor, which carries only a $150 fine. However, the court will be required to suspend your driver’s license for a mandatory 6 months. The offense can also be charged as a 4th degree misdemeanor, which is punishable by up to 30 days in jail and a $250 fine.
Many defense strategies are common for possession, trafficking, illegal cultivation and drug paraphernalia offenses. These include unlawful search and seizure, lack of intent or possession, reasonable suspicion and no warrant.
Unreasonable Search and Seizure
The primary defense is unlawful search and seizure. Law enforcement do not always comply with search and seizure laws and could result from lack of probable cause or a search warrant that was not properly executed.
This defense could apply in a situation where the police stop and ask you questions. An example of this can be found in a recent case, State v. Boswell, where a police officer stopped two men and asked them for identification. After cooperating, the officer asked them to submit to a search of their persons. The officer wanted to do this because the two men looked “nervous” and his “cop radar” told him something was wrong. The officer found marijuana paraphernalia on the two men.
The Ohio Court of Appeals found that the search was unconstitutional because there was nothing to suggest that the defendant violated or was about to violate the law. Thus, the police officer violated the defendant’s constitutional rights and the case was thrown out.
Lack of Intent
This defense is particularly important in trafficking cases. Trafficking in marijuana 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.
Lack of Possession
Possession of marijuana requires the prosecution prove that the person actually possessed the substance. While this seems to be straightforward (e.g., marijuana was on your person), possession is more complicated. Possession comes in two varieties: actual and constructive.
Actual possession is having physical control of marijuana on your person or in your possession. For example, if the controlled substance is in your pocket, you are in actual possession of marijuana.
Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within the individual’s immediate physical possession.
This defense is important primarily when a vehicle search is at issue. For example, if you are a passenger in a person’s vehicle and marijuana is found in that person’s vehicle, you can be charged with marijuana possession. However, the prosecution may have difficulties proving possession if the marijuana was not on your person or you did not have knowledge that marijuana was in the vehicle.
Before the police can pull over your vehicle, they must be able to articulate a reasonable suspicion that you committed a traffic or criminal violation. If law enforcement pulls over your vehicle, conducts a search and finds marijuana, the defense of lack of reasonable suspicion can be raised. If the police lacked reasonable suspicion that you committed a traffic or criminal violation, the case could be dismissed.
Lack of a Warrant
Generally, law enforcement is required to have a warrant before they can conduct a search. This is of particular importance when the police want to search your residence. If the police conduct a search of your residence without a warrant, or the search exceeds the scope of the warrant, the evidence could be suppressed because the search violated your constitutional rights.
Columbus and Delaware, Ohio Marijuana Defense Attorney
If you have been charged with a marijuana 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 marijuana case.