Despite changing laws and shifting public opinion, marijuana possession arrests still account for about half of all drug arrests in Ohio. Recently, Ohio lawmakers lowered the penalties for most marijuana offenses, but they did not decriminalize it. Possessing even a part of a joint is still a misdemeanor. So, a conviction could mean significant direct and collateral consequences.
However, because of the way the law is worded and enforced, marijuana possession charges often do not hold up in court. The state must prove several elements, and that proof must be beyond a reasonable doubt.
Partially because evidence on at least one point is lacking, and partially because many Greene County jurors view marijuana as a health issue instead of a criminal issue, a Fairborn criminal defense attorney can often resolve these charges successfully. That resolution could be a complete dismissal, a pretrial diversion program, or a favorable plea bargain.
Procedural Defenses
The prosecution must bring the allegedly illegal substance to court. Officers must have had a search warrant to take those drugs from you, or some exception must have applied.
Drug possession cases, especially marijuana cases, rarely involve search warrants. Everything happens so fast that officers rarely bother to contact judges and obtain warrants. If officers do have a warrant, the application often does not contain probable cause. The old “I smelled marijuana” line might establish reasonable suspicion, which is an evidence-based hunch, but it is usually not enough to establish probable cause, which is a higher standard of evidence.
The consent exception is usually the most common. Suspects may give consent to search vehicles, dwellings, backpacks, or any other property. An apparent owner is a person like a roommate whose name is not on the lease.
Other search warrant exceptions include plain view and exigent circumstances. The plain view doctrine often comes up in vehicle searches. As for exigent circumstances, if there is an emergency, like a gas leak, officers may enter property without a warrant and conduct safety sweeps.
Substantive Defenses
Lack of possession and inability to prove the substance was illegal are the two most common substantive defenses in marijuana possession cases.
In the everyday world, “possession” is synonymous with “proximity.” I possess my phone even if it is on the table outside my reach. But in court, Ohio prosecutors must establish proximity and knowledge.
Let’s return to the automobile example. If Joel was in the back seat, it is difficult to connect him to a baggie of weed that officers found under the front seat. It is even harder to make that connection if the weed was inside a locked glove compartment.
As for proof of illegality, hemp’s legalization transformed what was a meaningless technicality into a major issue. Hemp and cannabis are physically identical. They look alike and smell alike. While a THC test can distinguish between the substances beyond a reasonable doubt, this test is often unavailable in Greene County.
Work With an Effective Lawyer
A marijuana possession arrest does not always lead to a conviction. For a free consultation with an experienced Fairborn criminal defense lawyer, contact the Comunale Law Office. Home, virtual, and jail visits are available.
