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For real?

The defendant in State v. Marcus recently got a rude introduction to some of the intricacies of Ohio's drug laws.  The police had set him up for a controlled buy of cocaine, but when the deal went down, it turned out that what he had tested negative for drugs.  He was convicted of both drug trafficking under RC 2925.03 (offering to sell), and offering to sell a counterfeit controlled substance under RC 2925.37(B).

On appeal, he argued that the Supreme Court's decision last May in State v. Chandler meant that one had to have a measurable quantity of actual drugs in order to be convicted of sale.  Chandler simply holds that the drugs have to be real in order to convict the defendant of the major drug offender specification, as I explained in my post about the case at the time; the 8th District rightly noted that there any number of cases out there holding that somebody can be convicted of trafficking for only offering fake drugs for sale.

In fact, there are plenty of cases holding that you can be convicted of both trafficking and counterfeit substances; they're not allied offenses.  While this is technically correct under standard allied-offenses analysis, it's one of those cases where the technical basis of the law doesn't rest on a logical basis:  if you're going to penalize people for drug trafficking regardless of whether the drugs they're dealing are real or not, it doesn't make much sense to have a separate statute on dealing fake drugs.

I did run across one interesting case, though.  In State v. Garrett, the 11th District held that in order to convict someone of counterfeit drugs, you have to prove that they were counterfeit drugs.  The state hadn't introduced the substance, nor did they offer any testimony about tests done on it; they simply had lay witnesses say that it didn't look like LSD.  According to the court, that wasn't enough.  If you've got a case on counterfeit drugs, that's definitely worth a look.

Another thing worth a look is Ohio Prof. Doug Berman's blog, Sentencing Law and Policy, a recent addition to the Blogroll on the right sidebar.  It'll give you information on virtually every aspect of state and Federal sentencing law, and some good insights as well; Berman correctly predicted the difficulties Ohio's sentencing scheme faced after the US Supreme Court's Blakely decision, difficulties that culminated in the Ohio statutes being thrown out in large measure earlier this year. 

By the way, on this date in 1975, President Gerald Ford nominated John Paul Stephens to the Supreme Court seat vacated by William O. Douglas.

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