In Ohio, possession of marijuana under 100 grams is a minor misdemeanor. Each joint contains about a third of a gram of marijuana. So, if officers find several joints or even several dime bags, the criminal consequences are minimal.
Things are a lot different if the defendant has more than 100 grams of marijuana. That is basically a personal stash. This level of possession could mean up to 30 days in jail and a $250 fine, not to mention a permanent criminal record.
Fortunately, there are a number of ways for an Ohio criminal defense attorney to successfully resolve POM (possession of marijuana) charges. Most of these solutions involve a lack of evidence on one of the three points of a POM charge.
Produce the Substance
Drugs, weapons, and other physical evidence are inadmissible under the Fourth Amendment unless officers had a valid search warrant or a narrow search warrant exception applied. In drug trafficking cases, investigators often have search warrants. Frequently, these investigations last for weeks or months before the police make any arrests.
But possession cases are different. Everything happens very quickly. So, officers rarely bother with warrants. Therefore, prosecutors must rely on a search warrant exception, such as:
- Consent: Property owners can consent to property searches. That property could be a backpack, motor vehicle, residential dwelling, or anything else. If the consenting party had apparent authority, like a driver who did not legally own the car, that’s usually good enough.
- Plain View: This exception often applies to traffic stops. If officers see drugs or other contraband in plain view, they may seize it without a warrant. Partial plain view cases, such as a pistol partially protruding from under a seat, are in a grey area.
- Stop and Frisk: If officers have reasonable suspicion, they may pat suspects down for weapons and take any contraband they see, or rather feel, in plain view. Reasonable suspicion is basically an evidence-based hunch that criminal activity is afoot.
If the physical evidence is inadmissible, the prosecution collapses. In possession cases, prosecutors cannot move forward with just a police officer’s testimony.
Prove it Was Illegal
This second step was once a formality in POM cases. Now, the legal environment has changed, and it is one of the most difficult elements to prove. Lawmakers recently legalized industrial hemp. From a physical standpoint, hemp and marijuana are indistinguishable. They look the same, smell the same, and feel the same. Legally, a tetrahydrocannabinol content test is the only way to tell the difference. If the substance has a THC content below 0.3%, it is hemp. Otherwise, it is marijuana.
These THC tests are largely unavailable in Ohio. If they are available, they are so expensive that local prosecutors often cannot afford to test the substance.
This same issue comes up a lot with regard to marijuana edibles, which are legal in Illinois and some other nearby states. Prosecutors often try to use the product label as evidence of THC content, but this shortcut usually does not hold up in court. Most Montgomery County judges rule favorably on motions for THC content tests.
In the real world, possession and proximity are synonymous. I possess a cup of coffee even if it is not in my hand. In a court of law, proximity alone is not enough. Prosecutors must also establish knowledge and control., and they must establish these things beyond a reasonable doubt.
Assume officers pull over a carful of people. Officers find marijuana in the glove compartment, and they arrest everyone in the car for POM. But as for the back seat passengers, these charges might not hold up in court. It might be too hard to establish knowledge and control.
Contact a Dedicated Attorney
Understanding the three elements of a drug possession case is often key to a successful result. For a free consultation with an experienced criminal defense lawyer in Dayton, contact the Comunale Law Office. Home and jail visits are available.