It is one thing to get caught with drugs on your person (weed in your pocket), but is it another to get caught with drugs (weed) in your system? More specifically, what if you do not have any drugs in your pocket, but you have ingested drugs and they are now in your system—can you still get charged with the possession of a controlled substance? The answer may surprise you.
O.R.C. § 2925.11 Possession of controlled substances
This statute states that to be in possession of a controlled substance (drugs), someone cannot "knowingly obtain, possess, or use a controlled substance or a controlled substance analog." The statute is simply stating that a person cannot knowingly obtain, have on their person, or actually use a controlled substance. Obtaining is similar to buying or holding a drug, possessing is similar to having a drug in your pocket or on your person, and using a drug means to actually use or ingest the drug. However, the question still remains, what happens if law enforcement didn't see or catch you in the act of obtaining, possessing, or using the drug?
Appellate Courts Seem to Disagree
Turns out, for a definite answer to our question, it might be harder than we think because there seems to be a disagreement in the Ohio Appeals Courts. One appeals court says one thing, while another appeals court says another.
In our hypothetical above, State v. Lowe (1993) answers the issue of under Ohio law, can the State prove that a defendant violated § 2925.11 when the defendant only had traces of a controlled substance in his or her body? Lowe looks at the word "knowingly" in § 2925.11 to determine if finding traces of controlled substances in someone's blood would sufficiently support proof of this element. The court reasoned that, "the fact that a person's urine contains cocaine metabolites does not, standing alone, constitute sufficient evidence that the person knowingly ingested the controlled substance." Under our hypothetical, this would mean that although you had trace amounts of drugs in your system, the State would not be able to prove that you "knowingly" ingested the controlled substance. Thus, without the "knowingly" element, there can be no violation of §2925.11.
However, State v. McGowan (1993), an unpublished case*, states just the opposite of Lowe. McGowan answers the same issue in Lowe, however the court's reasoning is a bit different. McGowan looks at the word "use" in the statute. The court finds that although "the State did not find cocaine 'on' Appellant's person, does not negate the fact that the State found high levels of cocaine metabolites 'in' his person. Even though McGowan is talking about a separate issue, the court essentially disagreed with Lowe's reasoning. Simply, McGowan is stating that the definition of "use" in § 2925.11 includes drugs found "in" your person, or in your system. Although the court in McGowan did not specifically say this, it can be implied from its reasoning—just because the drugs are not "on" you at the time of the incident, does not negate the fact that they were "in" you at the time of the incident. Conversely, under our hypothetical, this would mean that although you did not have drugs in your pocket, as long as you have trace amounts of drugs in your system, the State can use this to support their conviction of § 2925.11.
*Unpublished cases do not hold as much argument-weight as published cases, however they are still somewhat persuasive.
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