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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | S. B. No. 2 |
SENATOR BLESSING
A BILL
To amend section 2925.11 of the Revised Code to eliminate the "medical
purposes" affirmative defense to the offense of possession of marihuana.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2925.11 of the Revised Code be amended to read as
follows:
Sec. 2925.11. (A) No person shall knowingly obtain,
possess, or use a controlled substance.
(B) This section does not apply to any of the following:
(1) Manufacturers, practitioners, pharmacists, owners of
pharmacies, and other persons whose conduct was in accordance
with Chapters 3719., 4715., 4729., 4731.,
and 4741. or section 4723.56 of the Revised Code;
(2) If the offense involves an anabolic steroid, any
person who is conducting or participating in a research project
involving the use of an anabolic steroid if the project has been
approved by the United States food and drug administration;
(3) Any person who sells, offers for sale, prescribes,
dispenses, or administers for livestock or other nonhuman species
an anabolic steroid that is expressly intended for administration
through implants to livestock or other nonhuman species and
approved for that purpose under the "Federal Food, Drug, and
Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A. 301, as amended,
and is sold, offered for sale, prescribed, dispensed, or
administered for that purpose in accordance with that act;
(4) Any person who obtained the controlled substance
pursuant to a prescription issued by a practitioner, where the
drug is in the original container in which it was dispensed to
such person.
(C) Whoever violates division (A) of this section is guilty of
one of the following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the
exception of marihuana,
cocaine, L.S.D.,
heroin, and hashish, whoever violates division (A) of
this section is guilty of aggravated possession of drugs. The
penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(1)(b), (c), (d), or (e) of
this section, aggravated possession of drugs is a
felony of the fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved exceeds
the bulk amount but does not exceed five times the bulk amount,
aggravated possession of drugs is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(c) If the amount of the drug involved exceeds
five times the bulk amount but does not exceed fifty times the
bulk amount, aggravated possession of drugs is a felony of the
second degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the
second degree.
(d) If the amount of the drug involved exceeds fifty times the bulk amount
but does not exceed one hundred times the bulk amount, aggravated possession
of drugs is a felony of the first degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of the
first degree.
(e) If the amount of the drug involved exceeds one hundred times the bulk
amount, aggravated possession of drugs is a felony of the first degree, and
the court shall impose as a mandatory prison term the maximum prison term
prescribed for a felony of the first degree and may impose an additional
mandatory prison term prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the Revised Code.
(2) If the drug involved in the violation is a compound,
mixture,
preparation, or substance included in schedule III, IV, or V,
whoever violates division (A) of this section is
guilty of possession of
drugs. The penalty for the offense shall be determined as
follows:
(a) Except as otherwise provided in division
(C)(2)(b), (c), or (d) of this section,
possession of drugs is a misdemeanor of
the third degree or, if the offender previously has been
convicted of a drug abuse offense, a misdemeanor of the second
degree. If the drug involved in the violation is an anabolic
steroid included in schedule III and if the offense is a
misdemeanor of the third degree under this division, in lieu of
sentencing the offender to a term of imprisonment in a detention
facility, the court may place the offender on conditional
probation pursuant to division (F) of this section or
division (F) of section 2951.02 of the Revised
Code.
(b) If the amount of the drug involved exceeds
the bulk amount but does not exceed five times the bulk amount,
possession of drugs is a felony of the fourth degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to
impose a prison term on the offender.
(c) If the amount of the drug involved exceeds
five times the bulk amount but does not exceed fifty times the
bulk amount, possession of drugs is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(d) If the amount of the drug involved exceeds
fifty times the bulk amount, possession of drugs is a felony of
the second degree, and the court shall impose upon the offender
as a mandatory prison term one of the prison terms prescribed for
a felony of the second degree.
(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than
hashish,
whoever
violates
division (A) of this
section is guilty of possession of marihuana. The penalty for
the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(3)(b), (c), (d), (e), or
(f) of this section, possession of marihuana is a minor
misdemeanor.
(b) If the amount of the drug involved equals
or exceeds one hundred grams but does not exceed two hundred
grams, possession of marihuana is a misdemeanor of the fourth
degree.
(c) If the amount of the drug involved exceeds
two hundred grams but does not exceed one thousand grams,
possession of marihuana is a felony of the fifth degree, and
division (B) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(d) If the amount of the drug involved exceeds
one thousand grams but does not exceed five thousand grams,
possession of marihuana is a felony of the third degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(e) If the amount of the drug involved exceeds
five thousand grams but does not exceed twenty thousand grams,
possession of marihuana is a felony of the third degree, and
there is a presumption that a prison term shall be imposed for
the offense.
(f) If the amount of the drug involved exceeds
twenty thousand grams, possession of marihuana is a felony of the
second degree, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the
second degree.
(4) If the drug involved in
the violation is cocaine or a compound, mixture, preparation, or substance
containing cocaine, whoever violates division (A)
of this section is guilty of possession of cocaine. The penalty
for the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(4)(b), (c), (d), (e), or
(f) of this section, possession of cocaine is a felony of the
fifth degree, and division (B) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved exceeds
five grams but does not exceed twenty-five grams of cocaine that is not crack
cocaine or exceeds one gram but does not
exceed five grams of crack cocaine, possession of
cocaine is a felony of the fourth degree, and there is a
presumption for a prison term for the offense.
(c) If the amount of the drug involved exceeds
twenty-five grams but does not exceed one hundred grams
of cocaine that is not crack cocaine or
exceeds five grams but does not
exceed ten grams of crack cocaine, possession of
cocaine is a felony of the third degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the third degree.
(d) If the amount of the drug involved exceeds
one hundred grams but does not exceed five hundred grams
of cocaine that is not crack cocaine or
exceeds ten grams but does not
exceed twenty-five grams of crack cocaine, possession of
cocaine is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree.
(e) If the amount of the drug involved exceeds
five hundred grams but does not exceed one thousand grams
of cocaine that is not crack cocaine or
exceeds twenty-five grams but
does not exceed one hundred grams of crack cocaine, possession of
cocaine is a felony of the first degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved exceeds
one thousand grams of cocaine that is not crack
cocaine or exceeds one
hundred grams of crack cocaine, possession of cocaine is a felony of
the first degree, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the first
degree and may impose an additional mandatory prison term
prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(5) If the drug involved in the violation is
L.S.D., whoever violates division
(A) of this section is guilty of possession of
L.S.D. The penalty for the offense shall
be determined as follows:
(a) Except as otherwise provided in division
(C)(5)(b), (c), (d), (e), or (f) of this section, possession of L.S.D. is a
felony of the fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the offender.
(b) If the amount of L.S.D. involved exceeds ten unit doses
but does not exceed fifty unit doses
of L.S.D. in a solid form or exceeds one gram
but does not exceed five grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of
L.S.D. is a felony of the fourth degree,
and division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(c) If the amount of
L.S.D. involved exceeds fifty unit doses,
but does not exceed two hundred fifty unit doses
of L.S.D. in a solid form or exceeds five grams
but does not exceed twenty-five grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of L.S.D. is a felony of the third degree, and there is a
presumption for a prison term for the offense.
(d) If the amount of
L.S.D. involved exceeds two hundred fifty
unit doses but does not exceed one thousand unit doses
of L.S.D. in a solid form or exceeds twenty-five
grams but does not exceed one hundred grams of L.S.D. in a liquid concentrate,
liquid extract, or liquid distillate form,
possession of L.S.D. is a felony of the
second degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the
second degree.
(e) If the amount of
L.S.D. involved exceeds one thousand unit
doses but does not exceed five thousand unit doses
of L.S.D. in a solid form or exceeds one hundred
grams but does not exceed five hundred grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of L.S.D. is a felony of the first degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the first degree.
(f) If the amount of
L.S.D. involved exceeds five thousand
unit doses
of L.S.D. in a solid form or exceeds five
hundred grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of L.S.D. is a
felony of the first degree, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a
felony of the first degree and may impose an additional mandatory
prison term prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin,
whoever violates division (A) of this section is guilty
of possession of heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(6)(b), (c), (d), (e), or
(f) of this section, possession of heroin is a felony of the fifth
degree, and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved exceeds
one gram but does not exceed five grams, possession of heroin is
a felony of the fourth degree, and division (C) of section 2929.13
of the Revised Code applies in determining whether to impose a prison term on
the offender.
(c) If the amount of the drug involved exceeds
five grams but does not exceed ten grams, possession of heroin is
a felony of the third degree, and there is a presumption for a
prison term for the offense.
(d) If the amount of the drug involved exceeds
ten grams but does not exceed fifty grams, possession of heroin
is a felony of the second degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the second degree.
(e) If the amount of the drug involved exceeds
fifty grams but does not exceed two hundred fifty grams,
possession of heroin is a felony of the first degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved exceeds
two hundred fifty grams, possession of heroin is a felony of the
first degree, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the first
degree and may impose an additional mandatory prison term
prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(7) If the drug involved in the violation is hashish or a compound,
mixture, preparation, or substance containing hashish,
whoever violates division (A) of this section is guilty
of possession of hashish. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(7)(b), (c), (d), (e), or
(f) of this section, possession of hashish is a minor misdemeanor.
(b) If the amount of the drug involved equals or exceeds
five grams but does not exceed ten grams of hashish in a solid form or equals
or exceeds one gram but does not exceed two grams of hashish in a liquid
concentrate, liquid extract, or liquid distillate form, possession of
hashish is a misdemeanor of the fourth degree.
(c) If the amount of the drug involved exceeds
ten grams but does not exceed fifty grams of hashish in a solid form or
exceeds two grams but does not exceed ten grams of hashish in a liquid
concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the fifth degree, and division
(B) of section 2929.13 of the Revised Code applies in determining whether to
impose
a prison term on the offender.
(d) If the amount of the drug involved exceeds
fifty grams but does not exceed two hundred fifty grams of hashish in a solid
form or exceeds ten grams but does not exceed fifty grams of hashish in a
liquid concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the third degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to impose
a prison term on the offender.
(e) If the amount of the drug involved exceeds
two hundred fifty grams but does not exceed one thousand grams of hashish in a
solid form or exceeds fifty grams but does not exceed two hundred grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the third degree, and there is a
presumption that a prison term shall be imposed for the offense.
(f) If the amount of the drug involved exceeds
one thousand grams of hashish in a solid form or exceeds two hundred grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the
second degree, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the second
degree.
(D) Arrest or conviction for a minor misdemeanor violation
of this section does not constitute a criminal record and need
not be reported by the person so arrested or convicted in
response to any inquiries about the person's criminal record,
including any inquiries contained in any application for
employment, license, or other right or privilege, or made in
connection with the person's appearance as a witness.
(E) In addition to any prison term authorized or
required by division (C) of this section and sections
2929.13 and 2929.14 of the Revised Code and in
addition to any other sanction that is imposed for the offense
under this section or sections 2929.11 to 2929.18 of
the
Revised Code, the court that sentences an
offender who is convicted of or pleads guilty to a violation of
division (A) of this section shall do all of the
following that are applicable regarding the offender:
(1)(a) If the violation is a felony of the
first, second, or third degree, the court shall impose upon the
offender the mandatory fine specified for the offense under
division (B)(1) of section 2929.18 of the Revised
Code unless, as specified in that division, the court
determines that the offender is indigent.
(b) Notwithstanding any contrary provision of section
3719.21 of the Revised Code, the clerk of the
court shall pay a mandatory fine or other fine
imposed for a violation of this section pursuant to division (A) of section
2929.18 of the Revised Code in accordance with and subject to the requirements
of division (F) of section 2925.03 of the Revised Code. The agency that
receives the fine shall use the fine as specified in division (F) of section
2925.03 of the Revised Code.
(c) If a person is charged with a violation of this section that is a felony
of the first, second, or third degree, posts bail, and forfeits the bail, the
clerk shall pay the forfeited bail pursuant to division
(E)(1)(b) of this section as if it were a mandatory fine
imposed under division (E)(1)(a) of this section.
(2) The court shall suspend for not less than six months or more than five
years the driver's or commercial driver's license or permit of any person who
is convicted of or has pleaded guilty to a violation of this section.
(3) If the offender is a professionally licensed person or a person who
has
been admitted to the bar by order of the supreme court in compliance with its
prescribed and published rules, in addition to any other sanction imposed for
a violation of this section, the court forthwith shall comply with section
2925.38 of the Revised Code.
(E)(F) It is an affirmative defense, as provided in section
2901.05 of the Revised Code, to a charge of a fourth degree felony
violation under this section that the controlled substance that gave
rise
to the charge is in an
amount, is in a form, is prepared, compounded, or mixed with substances that
are
not controlled substances in a manner, or is possessed
under any
other circumstances, that indicate that the substance was possessed solely for
personal use.
Notwithstanding any contrary provision of this section, if, in accordance
with section 2901.05 of the Revised Code, an accused who is charged with a fourth degree
felony violation of division (C)(2), (4), (5), or (6) of this section
sustains the burden of going forward with evidence of and establishes by a
preponderance of the evidence the affirmative defense described in this
division, the accused may be prosecuted for and may plead guilty to or be
convicted of a misdemeanor violation of division (C)(2) of this
section or a fifth degree
felony violation of division (C)(4), (5), or (6) of this section
respectively.
(I) It is an affirmative defense, as provided in section
2901.05 of the Revised Code, to a charge of possessing marihuana under this
section that the
offender, pursuant to the prior written recommendation of a licensed
physician, possessed the marihuana solely for medicinal purposes.
(J)(G) When a person is charged with possessing a bulk amount
or
multiple of a bulk amount, division (E) of section 2925.03 of the Revised Code
applies regarding the determination of the amount of the controlled substance
involved at the time of the offense.
Section 2. That existing section 2925.11 of the Revised Code is hereby
repealed.
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