Daily Court Reporter - News Supreme Court of Ohio: Legislative fix necessary for cocaine prosecutions as a result of court ruling
Supreme Court of Ohio: Legislative fix necessary for cocaine prosecutions as a result of court ruling
KEITH ARNOLD, Daily Reporter Staff Writer
A legislative fix relative to a holding by the Supreme Court of Ohio last year in State v. Gonzales, Slip Opinion 2016-Ohio-8319, is the motive behind a new measure introduced to the state House of Representatives.
And, perhaps, no legislator is better equipped to devise a legislative patch than former Supreme Court Justice Bob Cupp, a Republican representative from Lima.
House Bill 4 would restore statutory penalties for cocaine possession offenses relating to trafficking of the drug.
During testimony in support of the measure last week, Cupp told members of the House Criminal Justice Committee that the high court ruling in Gonzales changed how a prosecutor must go about arguing such an offense during the penalty phase.
The holding now requires a prosecutor to prove the quantity of pure cocaine rather than the long-standing precedent of proving the quantity of any mixture or compound containing cocaine, testimony detailed.
"The trafficking in cocaine penalty section appears to suffer from the same wording defect identified by the court," Cupp told his peers.
He noted Ohio law previously never was interpreted to require the disaggregation of a cocaine from any filler present in a mixture in order to meet the quantity requirement for the various penalty tiers and Bureau of Criminal Investigation and Identification laboratories are not accredited to perform this such analysis for use as evidence in court proceedings.
Cupp and fellow lawmaker and HB 4 joint sponsor, Rep. John Rogers, D-Mentor-on-the-Lake, reasoned that the new standard would result in only fifth-degree felony prosecutions.
"Under this situation, many if not most offenders will be subject only to a community control sanction if they have not previously been convicted of a felony offense," Cupp continued. "Courts only have the discretion to impose a prison sentence for these fifth-degree felonies in limited situations, usually when violence was involved in the offense.
"As the law now stands, drug dealers and traffickers are incentivized to possess and traffic in larger quantities of cocaine because the penalty would be of no greater consequence if the dealers and traffickers are apprehended with large quantities rather than smaller quantities."
According to analysis of the bill, provided by the Ohio Legislative Service Commission, HB 4 modifies the wording of the Drug Trafficking and Drug Possession Laws in connection with the penalties for trafficking and possession of cocaine.
Specifically, the bill removes the words "of cocaine" in connection with the amount involved throughout the drug trafficking and possession statutes.
Rogers characterized the consequence of the Supreme Court's ruling in Gonzales as a dangerous and new trajectory.
"Instead of effectively handcuffing law enforcement from keeping dangerous drug dealers off our streets, I believe that we should be handcuffing the criminals who make our state and communities less safe with dangerous drugs," he said upon the bill's introduction.
Cupp said penalty tiers will once again clearly apply to "cocaine or a compound, mixture, preparation or substance containing cocaine" of the weight specified after HB 4 is enacted.
The lawmakers attached an emergency clause to the measure to mitigate any unintended, dangerous consequences of the court ruling.
The clause makes the law effective immediately upon the governor's signature.
"Every day we delay in repairing the statute, the lowest penalty will continue to apply for cocaine possession, and likely for trafficking in cocaine," Cupp concluded.
More than a dozen lawmakers joined the joint sponsors in support of the measure, which was scheduled for further testimony this week.
Date Published: February 23, 2017