Only two months after ruling that prosecutors must prove the actual amount of cocaine in a substance, without fillers, the Ohio Supreme Court reversed its decision. In its original decision, the Court held that the definition of cocaine according to State law did not include any substance used as fillers. Thus, when law enforcement is determining the weight of a cocaine, they must only use the weight of the pure cocaine found in any given substance.
The problem with the original decision is twofold. First, Ohio crime labs do not have the sophisticated and costly equipment necessary to determine the exact weight of pure cocaine. The Ohio Attorney General’s Office said sending the cocaine to out of state labs would be expensive. Second, the degree of the offense is determined by the weight of the substance. For example, possession of any amount of cocaine less than 5 grams is a fifth degree felony and punishable by no more than a year in prison. Possession of any amount of cocaine exceeding 100 grams is punishable as a felony of the first degree and the offender is designated a major drug offender requiring the court to impose a mandatory maximum prison term. The problem for law enforcement is that, when only the pure cocaine in a substance is weighed, it is unlikely that most possession offenses would rise above a felony of the fifth degree. The narrow holding of the count would prevent major drug offenders from being punished more harshly.
The Court attempted to rectify the problems created by its first holding by turning to the language of the statute as a whole as well as the legislative history surrounding the statute. The statute’s definition of cocaine clearly encompasses the whole substance including any filler or material used in preparation. The statute does not include any language to suggest only pure cocaine may be weighed to determine the amount involved in the offense. The Court also looked to the nature of the drug itself suggesting it was rare for pure powdered cocaine to be sold.
Instead, the Court explained that cocaine powder is often combined or “cut” with one or more or more substances before sale which dilutes the purity. The entire substance is then consumed by the user. This practice was known at the time the statute was written suggesting the authors of the statute were not concerned with how much actual cocaine was found in any given substance. If they had been interested in determining only the amount of pure cocaine in the substance, they would have expressly called for such in the language of the statute itself. While the Court felt that the language in the statute was clear, they also pointed to the legislative history and the circumstances under which the statue was created to further explain their holding. They found the legislative history never mentioned purity of the drug but rather that punishment should be rendered “regardless of the form of cocaine involved.”
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