The Ohio Supreme Court is currently considering a case that could have drastic implications for how the weight of drugs, and specifically cocaine, is determined. In State v. Gonzales, the Court will determine whether the State needs to prove the overall weight of a substance containing cocaine or only the weight of the actual cocaine in the substance. Currently, the State is only required to prove the overall weight of the substance. The Sixth District Court of Appeals, however, held in early 2015 that the State must prove the weight of the actual cocaine possessed by the Defendant.
The Supreme Court's decision could potentially be a seismic shift in the way cocaine cases are prosecuted and punished. As it currently stands, a defendant who has 99 grams of baking soda mixed with one gram of cocaine would, in everywhere but the Sixth District, be facing a charge for possessing 100 grams of cocaine. In that case, possession of 100 grams of cocaine is a first degree felony with a major drug offender specification-meaning the defendant is facing a mandatory 11 years in prison. Under the Sixth District's approach, however, the defendant would be looking at a fifth degree felony carrying a possibility of up to 12 months in prison. Additionally, if the Defendant in that scenario was a first offender then the Court would likely be required to place the defendant on probation instead of sentencing him or her to prison and the defendant would likely be eligible for a program where if he or she successfully completed drug treatment then the charge would be dismissed.
Further, if the Supreme Court sides with the Sixth District, defense attorneys may be able to use that ruling to argue about the actual weight of other drugs. While Gonzales only addresses the weight of cocaine, one could imagine how this could also affect prosecutions for growing marijuana. Currently, the State is not required to separate the non-illegal portions of the marijuana plant, such as the stems and stalks, from the illegal portions when prosecuting a defendant. Therefore, the State can obtain a conviction and a higher sentence based on a weight that is artificially inflated by legal portions of the plant.
Clearly, the Gonzales case is a must follow for all criminal defense attorneys.