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On December 23, 2016, the Ohio Supreme Court rendered a landmark decision in State v. Gonzales, settling a dispute amongst appellate courts regarding the interpretation of Ohio Revised Code section 2925.11, as it pertains to the determination of weight in cocaine cases.
Revised Code section 2925.11, as it pertains to cocaine, states as follows:
- No person shall knowingly, obtain, possess, or use a controlled substance or a controlled substance analog.”
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(C ) Whoever violates division (A) of this section is guilty of one of the following:
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(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e), or (f) of this section, possession of cocaine is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved equals or exceeds five grams but is less than ten grams of cocaine, possession of cocaine is a felony of the fourth degree …
(c) If the amount of the drug involved equals or exceeds ten grams but is less than twenty grams of cocaine, possession of cocaine is a felony of the third degree …
(d) If the amount of the drug involved equals or exceeds twenty grams but is less than twenty-seven grams of cocaine, possession of cocaine is a felony of the second degree …
(e) If the amount of the drug involved equals or exceeds twenty-seven grams but is less than one hundred grams of cocaine, possession of cocaine is a felony of the first degree …
The Ohio Supreme Court found the language of 2925.11 pertaining to be cocaine to be ambiguous, as (C)(4) broadly encompasses not only the possession of pure cocaine, but also compounds, mixtures, preparations, or substances containing cocaine, while the portion of the statute dealing with the degree of the offense simply refers to “cocaine” and neglects to refer to compounds, mixtures, preparations, or substances containing cocaine. With those engaged in the cocaine trafficking business, it is common to include cheap filler materials such as baking soda, sugar, or corn starch to dilute the cocaine and increase profits. Because the possession of any amount of cocaine less than five grams is a felony of the fifth degree, regardless of whether there is any fillers involved, it is irrelevant that the language of the statute is ambiguous for offenses of the felony of the fifth degree.
However, the treatment of filler materials regarding weight is critical in determining the degree of the offense and resulting punishment. Prior to this decision, most courts applied the “cocaine or a compound, mixture, preparation, or substance containing cocaine” standard to all subsections of the statute. Thus, the accused could possess one gram of actual cocaine mixed in with twenty-seven grams of filler and be convicted of a felony of the second degree. This seems extremely harsh, considering the possession of one gram, without an baking soda, etc … mixed in, would be a mere felony of the fifth degree.
In State v. Gonzales, the Ohio Supreme Court held that if the legislature intended “cocaine or a compound, mixture, preparation, or substance containing cocaine” to be the standard applied in subsections (a) through (e), then that language should have been included, rather than the mere reference to “cocaine”. Thus, those sections are now interpreted to refer to the amount of “pure cocaine”, independent of any fillers.
As a result of this ruling, the State will effectively be required to arrange to have its laboratories conduct a “purity analysis” to determine the amount of pure cocaine in cases involving charges of the felony of the fourth degree or higher. The Ohio Supreme Court further stated that the fact that state laboratories are not equipped or certified to do a purity analysis, although burdensome, does not render prosecutions impossible.
If you or someone you know is charged with a criminal offense involving drugs, contact experienced Criminal Defense Attorney Jonathan Horwitz, proudly serving clients throughout Southwest Ohio.
