The seemingly-endless War on Drugs, which heated up in the 1980s, has cooled off considerably in the 21st century. Yet police officers in Ohio still make thousands of drug arrests, and over 80% of them are for simple possession.

These cases have a number of moving parts, so they are difficult to establish in court, especially beyond a reasonable doubt. This difficulty gives Dayton criminal defense attorneys a number of legal options. Even if the defendant has a criminal record and appears to be guilty, a successful resolution may be possible.

Lack of Evidence

Part of the aforementioned burden of proof includes presenting the seized substance in court and proving that it was illegal.

Police officers rarely bother to obtain search warrants in drug possession cases. So, the evidence they seize is inadmissible in court unless it fits into a narrow search warrant exception. Some common ones include:

  • Consent: Owners may give consent to property, personal, and automobile searches. The consenting party must have the authority to consent, or at least have apparent authority to consent (e.g., a roommate whose name is not on the lease).
  • Plain View: If officers are lawfully in a certain place and see drugs or other contraband, they may seize it without a warrant. Lawful presence usually depends on the reasonable suspicion, if any, that existed at the time. Partial plain view cases, such as a pistol grip protruding from under a seat, are in a grey area.
  • Pat Down: Weapons pat-down seizures and plain view seizures are a lot alike. In both situations, officers must have reasonable suspicion of criminal activity, and they may seize any contraband they find.

Furthermore, prosecutors must establish that the substance was illegal. In their reports, officers routinely state that the substance “field-tested” positive for marijuana, cocaine, or whatever. Such field tests are completely unscientific. A Florida man was recently arrested for possessing heroin, which turned out to be Tide laundry detergent, and a Georgia man was arrested for possessing crack cocaine, which turned out to be bird feces.

Marijuana possession is a special case. Recently, Ohio lawmakers legalized hemp, which is defined as a marijuana-like substance with a THC content below 0.3%. Many Ohio jurisdictions do not have testing equipment to determine THC content. So, there may be no way for the state to prove if the substance at issue was legal hemp or illegal marijuana.

No “Possession”

An illegal substance is not enough. Next, the prosecutor must connect the defendant with that illegal substance. Establishing legal possession is not always easy in court. Legally, possession has three basic components:

  • Proximity,
  • Knowledge, and
  • Control.

These three elements are especially hard to establish in automobile possession cases. Typically, if officers find drugs in a vehicle, they arrest all occupants for possession.

Assume Nick is in the back seat of a pickup truck, and officers discover drugs under the front seat. Legally, anything in the passenger area, as well as anything in the bed, meets the proximity test. But location is not enough. Prosecutors must also establish that Nick knew there were drugs under the seat and that he had some control over those drugs. These elements are hard to prove if Nick did not know the other occupants very well or if someone else was sitting on the drugs.

Contact an Assertive Attorney

Drug possession charges often do not hold up in court. For a free consultation with an experienced criminal defense lawyer in Dayton, contact the Comunale Law Office. Convenient payment plans are available.