Former Prosecutor Turned Drug Crimes Defense Attorney Fighting on Your Side in Cincinnati
If you or a loved one has been accused of a drug offense, you should contact a drug crimes attorney in Cincinnati with criminal defense experience immediately. Our team at The Law Offices of Steven R. Adams, LLC is prepared to advocate for you with advanced skills.
The federal government splits controlled substances into five separate categories known as “schedules,” in descending order of illegality and considered harm.
What Kinds of Drugs Are Illegal?
Any discussion about criminal drug cases must begin with an understanding of what is meant by a “criminal drug.” As you know, not all drugs are illegal. No one is going to stop and search you or put you in handcuffs for carrying aspirin in your purse. Caffeine is also a drug, but we don’t see cops regularly coming into the local Starbucks to bring you to the precinct for illegal possession of a latte.
To determine what types of drugs are illegal, you must look to the criminal statutes on the books. Those criminal statutes are the Ohio Revised Code (ORC) and the United States Code (USC). In those statutes, drugs are often referred to as “controlled substances.” Specifically, ORC section 3719.01(C) defines controlled substances as:
A drug, compound, mixture, preparation, or substance included in schedule I, II, III, IV, or V.
As you can see, Ohio law, like most state drug laws, classifies controlled substances into one of five categories, known as “schedules.” Notably, those five schedules, I through V, refer to the system used by the federal government in the Controlled Substances Act that classifies all illegal controlled substances.
As most of us know, common street drugs like cocaine, heroin, and L.S.D. are illegal. Cocaine, for example, is considered a schedule II substance. Yet, did you know that many prescription drugs are also scheduled drugs that are considered “controlled substances?” It’s true. So, you could be guilty of possession of illegal drugs if you possess a prescription drug, and you did not have a valid prescription for that drug.
Examples of illegal prescription drugs that you may hear about a lot in the news include oxycodone, hydrocodone, and Percocet. You may not think it is a big deal to give an Adderall pill to a friend. But, if you are caught doing it, then it could become a very big deal. In the simplest form, you should not be possessing, using, or obtaining any street drugs or prescription drugs if you do not have a prescription for that drug. Moreover, even if you do have a prescription, you should only be obtaining that drug from a licensed pharmacist.
The key takeaway here is that you should be aware that illegal drugs do not only include cocaine and heroin. It is also illegal to possess prescription drugs if you do not have a valid prescription for the drug, or if you did not obtain the prescription drug from a licensed pharmacist.
What Are the 5 Federal Drug Schedules?
Schedule I drugs are considered highly dangerous with an advanced potential for abuse and no known accepted medical benefits. Schedule V has some medical benefits and a lower potential for abuse, by comparison.
Examples of federally controlled substances in each of the categories are as follows:
- Schedule I — Heroin, LSD, Ecstasy, peyote, marijuana, methaqualone
- Schedule II — Vicodin, methamphetamine, methadone, hydromorphone, Ritalin, Adderall, oxycodone / OxyContin, and Demerol
- Schedule III — Ketamine, anabolic steroids, and testosterone
- Schedule IV — Xanax, Talwin, Ambien, Tramadol, Darvon, and Valium
- Schedule V — Cough medicines containing less than 200 milligrams of codeine per 100 milliliters, Lyrica, Motofen, and Lomotil
A drug crime conviction could leave you facing several penalties, which could have an impact on your future prospects. You may have difficulty finding secure employment. If you are currently a student, your loans could make you ineligible to continue receiving financial aid, such as loans and grants. Being caught driving under the influence of drugs can also result in license suspension.
If I Am Arrested, What Happens Next? What Are The Police Going to Say or Do To Me?
When you are arrested, you are legally in custody. Anytime you are in custody, the police must read you your Miranda warnings (which we discuss in more detail in the next section). Often the police will read you those Miranda warnings as soon as, or shortly after, you are arrested.
The police will then usually place you in the back of a police cruiser while they are executing any searches or administrative duties that they need to do. You will then be transported to the jail or the police station.
There may be some informal questioning going on while you are in the cruiser. Once you get to the jail or the police station, the police may question you formally. They will probably ask you questions like, “where did you get the drugs?” “who do you get your supply from?” “how long have you been using?” etc. Remember, you have a right to remain silent, exercise that right. Do not answer their questions. Simply and clearly state, “I would like to speak to an attorney.”
After the questioning, the police may either book you into the jail to await an arraignment (bond) hearing in front of a judge, or they may cite you to court. The biggest factor on whether you are cited to court or booked into jail is the level of the offense with which you are charged. The more serious the charge, the more likely you are to be booked into jail.
Once you are in the jail, the police may return later to question you again. Once again, do not speak to the police without a lawyer present.
Once your arraignment hearing is over, a bond will be set, which can be posted to secure your release. If you are released it is important that you return to court and keep in touch with your attorney. Failure to appear in court will result in the bond being forfeited. That means someone is going to lose the money that they posted for you to get out of jail. Also, failure to appear in court will result in a bench warrant being issued for your arrest.
What are Some Possible Defenses in a Drug Posession Case?
Remember we covered the elements of a drug possession charge in an earlier section. As a refresher, remember that the elements of drug possession are as follows:
- No person
- Shall knowingly
- Obtain, possess, or use
- A controlled substance or a controlled substance analog.
In a drug possession 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.
The “person” element is rarely, if ever, going to lend itself to any sort of defense.
We have discussed the “knowingly,” or mens rea, element in a previous section. 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.
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.
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.
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.
We discussed the concept of entrapment earlier in this book. Because we are talking about defenses, we should briefly reiterate the concept here. 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.
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.
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.
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.
Sentencing Basics in Drug Cases
Upon conviction, from either a plea or trial verdict, the next phase is sentencing. Depending upon whether you are in state court or federal court, the sentencing rules and guidelines will vary. In this section, we will give you a brief overview of what to expect depending upon which court is handing down the sentence. Keep in mind that there are volumes and volumes written about all aspects of criminal sentencing, which this small section will be unable to cover entirely. That said, this discussion should give you enough so you can have an effective conversation with your attorney about the sentencing phase of a trial.
Ohio State Court Sentencing
With regard to Ohio’s principles in sentencing, Ohio law provides as follows:
Sentencing courts must always consider the need for incarceration, deterrence, rehabilitation of the offender, and restitution to the victim and/or the public.
Sentences should be commensurate with, and not demeaning to, the seriousness of the offender’s conduct and its impact on the victim, and consistent with sentences for similar crimes by similar offenders.
Courts shall not sentence based on the offender’s race, ethnicity, gender, or religion.
There are specific sentencing guidelines in Ohio for drug cases, largely depending upon the quantity of drugs involved in the case. Sentencing judges will, of course, refer to those guidelines when sentencing drug possession or drug trafficking offenses as required in Ohio’s criminal statutes.
That said, it is within an Ohio sentencing judge’s discretion to sentence a defendant to whatever sentence the judge thinks is appropriate as long it falls somewhere in the range specified by Ohio statute. Any deviation in sentencing that goes outside those ranges will result in an appellate court reversing the sentence.
In addition to prison time, Ohio judges also have a number of sentencing options that include probation, drug treatment, and community service.
Here is a basic look at the penalties that a defendant could face following a drug conviction.
- Minor misdemeanor – maximum $150 fine
- 4th degree misdemeanor – maximum 30 days jail, and/or maximum $250 fine
- 3rd degree misdemeanor – maximum 60 days jail, and/or maximum $500 fine
- 2nd degree misdemeanor - maximum 90 days jail, and/or maximum $750 fine
- 1st degree misdemeanor - maximum 180 days jail, and/or maximum $1,000 fine
- 5th degree felony – 6-12 months prison, and/or maximum $2,500 fine
- 4th degree felony – 6-18 months prison, and/or maximum $5,000 fine
- 3rd degree felony – 1-3 years prison (some F-3s can be 1-5 years), and/or maximum $10,000 fine
- 2nd degree felony – 2-8 years prison, and/or maximum $15,000 fine
- 1st degree felony – 3-11 years prison, and/or maximum $20,000 fine
After looking at those basic numbers, a sentencing court in Ohio is also required to consider “seriousness & recidivism factors.” In other words, an Ohio sentencing judge will look at the specifics of a particular case and make adjustments to the numbers above based upon the specific case circumstances.
For example, a defendant’s sentence in a drug matter will be higher if he or she committed the drug offense while on bail, or if he or she has a history of criminal convictions. As noted in a previous chapter, a sentence will be higher if a drug offender is determined to be a “major drug offender.”
By the same token, the sentencing judge will also take into account certain mitigation factors that may lower a sentence. For example, if it was the offender’s first offense, or if the offender committed the drug offense under strong provocation, then those factors could result in a lighter sentence.
Finally, Ohio judges must take into consideration in drug cases, as with all criminal cases, the Ohio sentencing guidelines administered by the Ohio Criminal Sentencing Commission. Those guidelines assist the judge in the final sentencing decision, and both the defense and the prosecution can give input to the judge on what guideline factors should be considered.
Federal Sentencing in Drug Cases
With regard to drug trafficking in particular, the penalties for a conviction of federal drug trafficking vary depending upon the type of drug and the quantity of drugs involved in the case. For example, a person would be facing a three- to 10-year sentence and fines of over $100,000 for marijuana trafficking. Yet, that same person could be facing a possible 25-year prison sentence and fines up to $500,000 for heroin trafficking. In addition, sentencing enhancements, such as distributing narcotics in a school zone, will add to the potential penalty.
By way of some recent statistics, 95.7% of those convicted of a federal drug trafficking offense were sentenced to a term in prison. The average sentence for drug trafficking offenders was around five years in prison. Interestingly, almost half of all those convicted of federal drug trafficking had little or no prior criminal history.
It should also be noted that a drug trafficking conviction may have other collateral consequences. Law enforcement has the ability to seize assets of those involved in drug offenses, which could include seizure and eventual forfeiture of assets like cars, bank accounts, or real estate. Immigration consequences may also result from a federal drug trafficking conviction.
Similar to the Ohio sentencing guidelines, federal judges must also take into consideration the United States Federal Sentencing Guidelines, which are promulgated by the United States Sentencing Commission.
As with the Ohio guidelines, the U.S. Sentencing Guidelines provide a uniform policy for sentencing defendants convicted in federal court. The U.S. Guidelines help determine sentences based primarily on two factors:
- The conduct associated with the offense, which is described as the “offense level,” and
- The defendant’s criminal history.
The U.S. Guidelines essentially place those two factors on a table, and the intersection of each category will result in the appropriate sentencing range.
For example, if a defendant is convicted of an offense that has an offense level of 22, and the defendant’s criminal history is in Category I (little or no criminal history), then the intersection of those two factors will show a recommended sentence of 41 to 51 months (or about 3.5 to 4.25 years) in prison. Yet, if another defendant commits the same crime in the same manner but has a criminal history in Category VI (an extensive criminal history), then the U.S. guidelines recommend a sentence of 84 to 105 months (or about 7 to 8.75 years) in prison.
The U.S. Guidelines also allow the judge, after finding the recommended sentence based on the above two factors, to make adjustments to that recommended sentence. Those adjustments are called “upward and downward departures.” For example, if a defendant provides substantial assistance to the police then he or she may be eligible for a “downward departure” from the recommended sentence. By contrast, if a weapon was used during the crime, then that could result in an “upward departure” from the recommended sentence.
Finally, it is important to remember that the U.S. Guidelines are not mandatory. The judge does not necessarily need to abide by the Guidelines. Yet, the Guidelines serve as a basis upon which both the defense and the prosecution argue for a particular sentence, and the sentencing guidelines are highly persuasive.
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.