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Notes From the Mulligan Bench*

(*An appellate blog and other musings)


Click on a blog title below to access the post. 

Legend: ALR = Appellate Law Related; GLR = General Law Related; NLR = Not Law Related.

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Fillers Now Count as Cocaine (GLR)

                         This is coke now.

                         This is coke now.

This week, the Ohio Supreme Court released an opinion addressing whether filler materials must be excluded when weighing a cocaine-containing cocktail to determine the appropriate level of punishment for possession of cocaine under R.C. 2925.11(A).  When convicted, the penalty an offender faces correlates to the weight of the cocaine in his or her possession.  The heftier the amount of drugs, the heftier the punishment.  In State v. Gonzalez (Gonzalez II for those keeping count), Justice O'Connor and her brood put to rest the issue of whether fillers should hit the scale.

       Until lawyers pick the issue apart again, that is.

       Until lawyers pick the issue apart again, that is.

On reconsideration of its prior decision, the Gonzalez II court held that the entire mixture was to be assessed as a whole.  This method, the court opined, accorded with long-established notions of statutory interpretation.  R.C. 2925.11(C)(4) criminalizes the possession of cocaine or a compound, mixture, preparation, or substance containing cocaine.  The high court reasoned that the General Assembly did not intend for the state to have to distill a cocaine cocktail down to its components before weighing it to assess the appropriate penalty for an offender.

But why not?  It only takes Abby Sciuto a few minutes to run lab tests on NCIS.

But why not?  It only takes Abby Sciuto a few minutes to run lab tests on NCIS.

Read as a whole, the high court concluded, the statutory scheme clearly encompasses a compound or preparation that includes cocaine.  By definition, a "compound" is a union of two or more ingredients.  The court noted that cocaine itself is a compound of coca paste, potassium salt, ammonia, and other adulterants or fillers.

Thanks for for the recipe, Supremes.

Thanks for for the recipe, Supremes.

The high court reasoned that said fillers are not meant to be extracted before the cocaine is consumed.  Rather, they are part of the mixture.  Accordingly, the court held, "the total weight of the drug, including any fillers that are part of usable cocaine, should be weighed to determine the appropriate cocaine-possession penalty under the statute."  Justices O'Donnell, French, and DeWine concurred in the majority opinion, while Justice Fisher concurred in part and dissented in part and Justice Kennedy dissented from the majority entirely.

Prediction: Criminal defense attorneys in future cocaine-possession cases in the state of Ohio will dissect which fillers are "part of usable cocaine" and which are not.

Not a good filler to use to bypass the Gonzalez decision.

Not a good filler to use to bypass the Gonzalez decision.

Thanks for reading.

Krista Marie GieskeClients’ ChoiceAward 2017