Before learning the difference between normal vs. aggravated drug trafficking, it’s important to know what it means to “traffic” a drug in the first place. Drug trafficking in Ohio arises in two situations: (1) when a person knowingly sells or offers to sell a drug, or (2) when a person ships, transports, delivers, or distributes a drug when that person knows or has reason to know that the drug is intended to be sold. Courts generally separate crimes into pieces called “elements”—if a person’s actions satisfy every element, then they have committed that crime.
The first element of any drug trafficking crime is whether the person took the action “knowingly.” In Ohio, a person acts knowingly when they are aware that their actions “will probably cause a certain result.” In other words, you have to be aware that you are selling drugs or offering to sell drugs. This “knowledge” is not attached to the drug itself, however. Even if what the person is selling is powdered sugar instead of cocaine, if the person knows that cocaine is a drug (as most would) then they are knowingly offering to sell a drug, regardless of what’s in the bag.
The next element has to do with the actions of selling or offering to sell. Selling normally requires the exchange of some form of drug or substance and money; however, Ohio’s statute also prohibits “offering to sell.” An offer to sell does not require that a controlled substance be transferred between parties; that means that asking someone if they want to buy drugs from you, whether or not there is an actual transfer is considered drug trafficking.
The final element for the first category of drug trafficking revolves around the drug itself—the selling of or offering to sell a controlled substance. As noted above, the object being sold does not have to be a controlled substance; if the person offers to sell a drug, even when the drug is fake, it’s still considered trafficking. Ohio has an entirely separate statute for possessing and selling fake drugs. Ohio courts go even further and allow a person to be charged with trafficking a fake drug and trafficking a real drug in relation to the one drug incident.
The second category of drug trafficking has its own elements— (1) the action of shipping, transporting, delivering, distributing, or otherwise preparing a (2) drug or controlled substance (3) with knowledge or reasonable cause to believe the drug is intended to be sold. Ohio courts ruled that to be convicted under this second category of drug trafficking, “actual possession by a defendant with the intent to distribute” must exist.
Now that you have some general knowledge of what drug trafficking is in Ohio, let’s discuss the difference between sentences for drug trafficking as opposed to aggravated drug trafficking. Drug trafficking becomes “aggravated” when certain types of drugs are involved. Ohio classifies drugs into different categories known as “schedules” based on a federal list. For example, commonly known schedule I drugs are heroin, LSD, marihuana, and ecstasy; however, schedule I contains a lot more than just these drugs. Aggravated Drug Trafficking involves all of schedule I and schedule II drugs, except marihuana. The charges are not only different in name, but also have different penalties.
Drug trafficking defaults as a fifth-degree felony, while aggravated drug trafficking defaults as a fourth-degree felony. The highest charge is “first degree,” followed by second, third, and so on, and the accompanying penalty is worse the higher the degree. There are a number of factors in Ohio’s drug trafficking law that change the degree of the crime: (1) whether the offense was committed around a school or child (2) whether the amount of the drug exceeds an assigned bulk amount, and (3) whether the offender had previously been convicted of drug abuse offenses. The presence of these factors will increase the severity of the penalty.
For example, gifting 20 grams or less of marihuana is charged as a minor misdemeanor for the first offense, while the second offense is charged as a third-degree misdemeanor. Trafficking more than 20 grams, but less then 200 grams of marihuana, is charged as a fifth-degree felony. Trafficking in that same amount of marihuana but within the vicinity of a school or juvenile is charged as a fourth-degree felony. Trafficking 40,000 grams or more of marijuana is charged as a second-degree felony, to which the court will impose a maximum second degree felony mandatory prison term.
Hopefully, you have learned he difference between trafficking in drugs and aggravated trafficking in drugs.
Are you or someone you know facing drug charges in Cincinnati, OH?
If you are facing drug charges, you need to speak with an experienced drug crimes attorney as soon as possible. The Law Offices of Steven R. Adams is recognized by Super Lawyers, Best Lawyers, The Best Lawyers in America, National Trial Lawyers Top 100, and is one of U.S. News' Best Law Firms. Please contact us online or call our Cincinnati office directly at 513-929-9333 to schedule your free consultation.