Being charged with drug possession in Cincinnati, Ohio, is scary. A conviction comes with severe penalties and possible time in prison. Working with an experienced attorney who will develop an effective defense is essential.
The right attorney will understand Ohio drug laws and use multiple defense strategies to get your charges reduced or eliminated.
Drug Possession Laws & Penalties
Ohio Revised Code (ORC) 2925.11 lists elements of possession that must be proven beyond a reasonable doubt to get a conviction. If you can challenge or call into question any of these elements, you can better develop a defense and seek a favorable outcome, such as a reduction or dismissal.
Elements of drug possession in Ohio include:
- You knew or intentionally possessed a controlled substance without a prescription.
- You knew the drug was an illegal controlled substance.
- You had actual or constructive control or possession of the drug.
One of the key elements is control. Actual control means that you had physical control of the drugs in your hands, pocket, or other location where you have physical control.
Constructive control is more difficult to prove. Constructive possession requires that you were aware that the substance was within your presence and it was illegal, you were able to take actual possession, and you had the intent to take actual control of the substance.
Examples of drug possession charges include:
- Possession of a controlled substance (PCS)
- Possession of drug abuse instruments
- Permitting drug abuse
- Illegal use or possession of drug paraphernalia
- Deception to obtain a dangerous drug
- Unlawful processing of drug documents
- Possession of marijuana
- Possession of a forged prescription
- Possession with intent to sell
- Possession of drugs in a school zone
- Federal drug possession
Drug Classification
The penalties for drug possession in Ohio largely depend on the type and amount of controlled substance. These classifications and amounts are also important factors in creating a defense plan.
ORC 3719.41 categorizes drugs in Ohio as follows.
- Schedule I includes drugs with a high potential for abuse and dependence. They have no currently accepted medical use. Examples include heroin, LSD, MDMA, and peyote.
- Schedule II includes drugs with a high potential for abuse that are considered dangerous. Examples include Vicodin, cocaine, methamphetamine (“meth”), oxycodone, fentanyl, Adderall, and Ritalin.
- Schedule III includes drugs with a moderate to low potential for dependence, such as Tylenol with codeine, ketamine, anabolic steroids, and testosterone.
- Schedule IV includes drugs with a low risk for abuse and dependence. Examples include Xanax, Soma, Darvocet, Valium, Ativan, Ambien, Tramadol, and many other prescription medications.
- Schedule V includes drugs with an even lower potential for abuse, often with antitussive and analgesic purposes. Examples include Robitussin AC with codeine, Lomotil, and Lyrica.
Possession of Schedule I drugs carry stiffer penalties than Schedule V drugs. The more drugs you have, the worse your penalties will be. Some drug possession charges are misdemeanors, and others are felonies. Felonies carry harsher penalties and can result in time in prison.
10 Drug Possession Defenses That Work
Effective criminal defense lawyers use multiple strategies to attack the charges against you and craft plans according to your circumstances. Here are some potential drug possession defenses that may apply or help your situation:
1. Unlawful Search and Seizure
You have a Fourth Amendment right against unlawful searches and seizures by the police. This Constitutional right requires the police to have probable cause for a search. If the police infringed upon your rights, then you can get specific evidence obtained through an illegal search and seizure thrown out.
2. Lack of Actual or Constructive Possession
If you were not in control of the drugs, then the prosecutor should not be able to get a conviction. For example, if a passenger in your car had drugs in their pocket, and you were unaware of the drugs, you did not have actual or constructive possession.
3. Entrapment
This is an affirmative defense, where you claim that the police created a situation that enticed you to commit the crime. You must prove you did not intend to commit the crime and that the police coerced you into action.
4. Valid Prescription or Medical Necessity
A valid prescription or medical ID card for medical marijuana, for example, is an affirmative defense to possession of some drugs. Your lawyer can help you show medical necessity for the drugs you had.
5. Police Mistakes
If the police, investigators, or prosecution made any mistakes in your case, then you may be able to get your charges dismissed. If they mishandled evidence, for example, that evidence may be suppressed, severely hurting the prosecution’s case.
6. Inaccurate Lab-Testing
The state must prove that the controlled substance you were in possession of was a drug. This requires lab testing by a certified individual. Your criminal defense lawyer can attempt to show that the testing by the lab was inaccurate and the drugs either were misidentified or the amount was not accurate.
7. Chan of Evidence Issues
All drug possession of evidence must be tracked and properly stored. If there is a gap in who transported or reviewed the evidence, there is potential contamination. The court may throw it out if there are chain of evidence issues.
8. Police or Others Planted the Drugs
Although many people think it’s unusual, the police and others have been known to plant drugs on people to get them arrested and convicted. If you believe someone planted evidence on you, then your criminal defense lawyer can conduct an independent investigation to prove you didn’t actually possess the drugs.
9. Drugs Were Not Yours or Under Your Control
If you were not in control of the drugs or they were not yours, then your attorney can show that you did not intend to possess the drugs. The intent is an essential element of this crime, and lack of intent should result in the case being dismissed.
10. Drugs Were Misidentified
Drugs must be sent to a lab for testing. If they are not a controlled substance, you cannot be charged with drug possession in Ohio. Your attorney should send the alleged drugs to an independent lab to confirm any results the state claims to have made.
How to Build a Strong Defense to Drug Possession
Many factors will be considered when determining which defenses work best for you. Your lawyer will consider the specific circumstances of your case, including:
- Other people who were involved or present
- Witness testimony
- Investigatory techniques being used
- History of the police officers
- Background of the defendant
- Type of drug
- Criminal history of the defendant
- Circumstances surrounding the arrest
- Physical evidence and lab results
- Police reports and documentation
Your lawyer will evaluate all available evidence when choosing a solid defense strategy. Working with an experienced criminal defense attorney who understands how to use all the evidence to benefit your case is essential.
Navigating the Legal Process
If you are arrested and charged with drug possession in Cincinnati, Ohio, here are some tips to help you navigate the legal process:
- Know your rights during arrest and interrogation
- Don’t speak to the police until you talk to an attorney
- Maintain open communication with your defense attorney
- Be proactive in gathering evidence and building your defense
- Understand the potential consequences and make informed decisions
A Drug Defense Attorney at LHA Can Help
To prove that you are guilty of drug possession, the prosecutor must meet all the elements of the crime in Ohio. You should work with a drug defense attorney who can poke holes in the prosecution’s case to disprove those elements. Call Luftman, Heck & Associates at (513) 338-1890 to talk to our legal team about how we can get your charges reduced or your case dismissed.
