Can I be charged with possession of a controlled substance because I have an illegal drug in my blood stream?
Classic lawyer answer: it depends. However, a recent Ohio Supreme Court case, State v. Forman, 2021-Ohio-3409, made it clear that the mere presence of a drug metabolite in someone’s system is not, alone, sufficient evidence of drug “possession.”
What was State v. Forman about?
Ms. Forman was charged with possession of cocaine after blood tests showed cocaine metabolites (the chemicals compounds that remain after your body processes cocaine) in her newborn son’s urine, stool, and umbilical cord. She was convicted of the felony charge and was sentenced to three years of community control (aka probation).
The Ohio Supreme Court took the appeal to determine if the mere presence of a drug metabolite in a person’s body is sufficient evidence to establish venue. In every criminal case, a prosecutor must prove that the crime occurred in the county, city, town, etc. where the court is located to prove venue. If venue isn’t proven, then the defendant must be found not guilty.
What did the Ohio Supreme Court decide?
In short, the Court decided that in Foreman’s case the prosecution had failed to sufficiently establish venue. In other words, just because Ms. Foreman had the metabolites of cocaine in her system while she was in Seneca County did not prove, beyond a reasonable doubt, that she committed the crime of possessing cocaine within the borders of Seneca County.
Why did the Ohio Supreme Court decide that venue was not proven?
The Court found that the prosecutor failed to show that Ms. Foreman had possessed cocaine while in Seneca County. While the blood tests certainly proved that she was positive for cocaine use (the metabolites), those tests did not prove exactly when and where she used the cocaine. Without evidence that Ms. Foreman possessed cocaine in Seneca County, the prosecutor could not prove that Seneca County was the proper place for the case to be heard. Therefore, the prosecutor failed to prove venue, and Ms. Foreman’s conviction was overturned.
What does this case tell us?
The case establishes that you cannot be prosecuted for possessing illegal drugs simply because you have the metabolites for illegal drugs in your system. The Court was clear though that their decision only applies to processed metabolites and not to drugs that are stored in baggies or other objects that stops your body from metabolizing or breaking down the drugs into chemical compounds.
The case could also have broader implications about other substances too. For example, being charged for alcohol possession under the age of 21 because you have ethanol in your blood. This does not apply to alcohol consumption or intoxication while under 21, which are separate offenses.
The Court was also clear that if the prosecutors had other evidence, for example if Ms. Foreman admitted to possessing cocaine in Seneca County plus the presence of the cocaine metabolites in her blood, then venue would have been established and her conviction would have been affirmed. In other words, if a defendant confesses to a specific location for possessing/consuming illegal drugs, venue can be established.
If you have been charged for a possession offense, make sure you understand your rights and legal defenses before pleading guilty. Rittgers Rittgers & Nakajima has experienced criminal defense trial attorneys that can help you with your questions or help defend you in court.