The elements of drug possession are as follows: 

  1. No person
  2. Shall knowingly
  3. Obtain, possess, or use
  4. A controlled substance or a controlled substance analog. 

In a drug possession case or any other case, for that matter, it is important to know the elements and how reasonable doubt can be created around one or more of the elements. drug possession

  1. No Person 

The “person” element is rarely, if ever, going to lend itself to any sort of defense. 

  1. Knowingly

Showing that you did not “knowingly” commit drug possession is a good defense.  Attacking the mental state or “knowingly” element is often sort of intertwined in attacking the “obtain, possess, or use” element.  However, it is not a defense to drug possession to think that you have bought cocaine off the street when, in fact, what you bought was heroin. 

You must have knowledge of circumstances when the person is aware that such circumstances probably exist (ORC 2901.22(B)).  However, you only have to have knowledge of obtaining, possessing, or using a controlled substance.  The State is not required to show that you had knowledge that you obtained, possessed, or used a specific controlled substance. 

  1. Obtain, Possess, or Use

As you know, “possess” or “possession” means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.  This is the element most ripe for attack.

If a drug is found in your pocket, underwear, or sock, then it will be very difficult to argue that you did not possess that drug.  However, if a drug is found somewhere in a home or in a car that other people have or had access to, then headway can be made.  As the Ohio Legislature has stated, possession “may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.”  So, if other people had the opportunity to place the drug wherever it was found, you have grounds to defend on the “obtain, possess, or use” elements. 

  1. A Controlled Substance or Controlled Substance Analog

This element would only come up if the “drug” that you were charged with possessing was not a drug at all.  For example, if you bought what you thought was cocaine and it turns out that it was 100% baking soda, then you would not be in possession of a controlled substance or controlled substance analog.  This makes total sense because people buy baking soda at the supermarket on a daily basis.  However, things take a sharp turn if what you bought was 1% cocaine and 99% baking soda.  Then, you could be charged as if the full amount or full weight of that substance was cocaine.

Indeed, the Ohio Supreme Court decided in the 2017 case of State v. Gonzales that the purity or lack of purity of a particular substance is not a defense to a possession charge.  Additionally, as a general rule, the more of a controlled substance you possess, the more serious the charge.  Thus, based on this Gonzales decision, the purity or lack of purity is not a defense to lower the offense charged to a lower-level offense with lower penalties. 

All that being said, while it may not be a legal defense, it is certainly a mitigating factor that could play into plea negotiations if the substance you are charged with possessing is 90% baking soda (or filler) and only 10% of the actual drug.

  1. Venue

While not technically an element, the State must prove that your obtaining, possessing or using of a controlled substance happened within the proper venue.  This would usually come up most often with the “using” element.  Unless you tell them where you used a particular drug, it will be very difficult to show where you used that drug.  You have a Fifth Amendment right to not answer police questioning about where you used drugs.  Exercise that right.

  1. Other Defenses
    1. Entrapment

The defense of entrapment is available to you if you were not intending to commit a crime until the police intervened and put the idea in your head to commit a drug crime.  If, however, you were ready and willing to commit the crime, then entrapment is not an available defense.  A good example in the drug context is if an undercover police officer continually asks you to provide him with drugs and you refuse.  Then, you ultimately relent and provide the drugs because the undercover said that someone is suffering withdrawals and would be harmed without drugs.  In that circumstance, you would likely have a good entrapment defense available to you.

    1. Mistaken Identity

It is possible in your drug case that an eyewitness identified you as the perpetrator, and the eyewitness may have actually seen someone else, thinking it was you.  In those cases, you can assert a mistaken identity defense.  As the name suggests, it is a claim that the eyewitness got it wrong, and that you are not the person that the eyewitness saw committing a crime.  Because the prosecution must prove a criminal case beyond a reasonable doubt, challenging the memory and perception of the eyewitness may provide the kind of doubt that will lead to a favorable verdict for you.

    1. Alibi

An alibi defense is raised when you provide information to demonstrate that you could not have committed the crime because you were somewhere else at the time the police say you committed the crime.  The classic example of an alibi is when you provide information to show that you were at a friend’s house at midnight on the night the alleged crime took place, after the police assert that you were at the corner market at midnight when they witnessed you engage in a drug transaction. 

Although you never have the burden of proving your innocence in a drug trial, you would need to present some information, perhaps an alibi witness, to demonstrate that you were not in the place the police said you were at the time of the crime.

    1. Police Credibility and Reasonable Doubt

Another defense approach centers on the prosecution’s case, rather than on other information showing that you are innocent.  Similar to the first four defenses mentioned above, it is always a worthwhile strategy in a drug case to argue at trial that the prosecution simply cannot prove its case.

Whether there is information showing that the police officer who takes the stand cannot be believed, or whether the circumstantial evidence presented has holes in it and fails to tell the full story, attacking the prosecution’s case must always be a part of the defense case at trial.

Remember, the prosecution side of the courtroom carries the burden of proving guilt beyond a reasonable doubt, and the burden never leaves that side of the courtroom.  Furthermore, it is difficult to get 12 people on a jury to agree on anything beyond a reasonable doubt. 

So, make sure that you and your attorney focus on the flaws, the inconsistencies, the holes, the all-too-convenient facts in police reports, and the unreasonable assumptions made by police and witnesses when arguing in your defense.       

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. 

Tad Brittingham
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Criminal defense attorney Tad Brittingham is dedicated to serving his clients throughout the Cincinnati area