John A Boyd, Attorney in Mansfield, Ohio

Ohio Marijuana Laws Could Mean Felony Charges for Newer Products

The marijuana industry and culture is moving faster than Ohio lawmakers when it comes to establishing laws about how to charge possession of marijuana in its newest forms. Ohio law criminalizes the possession of marijuana and hashish, in its more traditional forms, as a misdemeanor offense. However, Ohio law lacks clear guidance as to how to treat the possession of the pure tetrahydrocannibanol, or “THC,” compound, which constitutes the primary active ingredient in marijuana. Newer methods of processing marijuana is resulting in products that contain a high concentrations of THC, are relatively odorless as compared to burning the marijuana plant buds, and are therefore rising in popularity. The Ohio Revised Code fails to clearly define these newer substances, and thus, how their possession should be treated.


Ohio law classifies the possession of a Schedule I controlled substance as a felony. The chemical compound tetrahydrocannibanol (THC) is a Schedule I controlled substance, and thus, the possession of pure THC is arguably a felony. The Ohio Revised Code creates an exception to the rule, stating specifically that it is a misdemeanor to possess the "marihuana" plant or hashish (which contains THC within). Hashish is defined under Ohio law as “the resin or a preparation of the resin contained in marihuana, whether in solid form or in a liquid concentrate, liquid extract, or liquid distillate form.”


New(er) Marijuana Products

These new marijuana products have a variety of informal street names, such as “wax,” “shatter,” “dabs” and “hash oil” or “butane hash oil.” There are subtle differences between these newer forms of marijuana, whether they are solid, semi-solid or liquid, but suffice it to say that they all contain substantially higher concentrations of THC than the marijuana plant itself.


The problem is this: these new marijuana products do not clearly fall within the definitions of the marijuana plant or hashish, as defined in the Ohio Revised Code. To make matters worse, in a recent case that I handled, the Ohio State Highway Patrol Crime Lab performed an analysis of marijuana “wax” and found it to contain 100% THC, without any other compounds, i.e., organic matter, in the sample. The prosecutor therefore charged my client with a felony, reasoning that because the substance 100% constituted a Schedule I controlled substance, possession of this chemical compound did not fall within the marijuana or hashish exceptions of Ohio law.


While this article will not distinguish the minor nuances between these new products, it is important to understand how they are generally made. The process involves applies heat, and/or chemicals, and/or agitation to the marijuana plant to separate THC from plant matter. Because the process invariably involves extracting or distilling THC from the plant, whether in solid or liquid form, there is a strong argument to be made that all of these new forms of marijuana fall within the definition of “hashish.” The question then becomes, is it possible to synthetically produce THC in a laboratory, without the plant? Or conversely, is the plant a necessary component of producing THC and thus, are all forms of THC an extract from the plant? If so, all extracts from marijuana are arguably defined as hashish under the Ohio Revised Code.


Mounting a Defense: Complex Legal Issues

Even if we know the answer to this question, putting on a legal defense is complex for a variety of reasons. First, the state brings the charge, and it is the state’s burden to prove, beyond a reasonable doubt, that the defendant possessed the substance. If the state proves that the defendant possessed THC (and not the plant or hashish), a Schedule I controlled substance, a felony, then does it become the defendant’s burden to affirmatively prove as a defense that the THC is a resin extract from the marijuana plant? If so, how does the defendant put on his defense? Is it necessary that the defendant produce expert testimony from a marijuana expert to prove that THC only comes from a marijuana plant? Where does one go about obtaining such an expert? Time to subpoena Snoop Dogg. Assuming that an expert can credibly describe the process, is it up to the jury to decide from where the THC derived, or is that a legal question that is decided by the judge?


Fortunately, in the case that I mentioned above, I was able to negotiate with the prosecuting attorney and resolve the charge as a misdemeanor, without having to resolve the litany of questions that this particular scenario raises. However, it is plausible that other prosecutors will charge non-plant/non-hashish THC possession as a felony. This is clearly an area of unsettled law – at least until the legislature or a reviewing court addresses this problem.


Edible Marijuana

The issue is going to become more difficult in the near future (if it has not already): cannabis-infused food, candy and drinks. Will the THC found in these food products fall under the Ohio Revised Code’s “hashish” definition as an extract from the marijuana plant? Or is the THC in these products too far removed to be considered as what we think of as “hashish”? Except that a food product does not inherently appear to contain marijuana, the distinction seems illogical: Possessing a fraction of a gram of THC in food could result in a felony charge, while possessing 199 grams of smokable marijuana, 9.9 grams of solid hashish or 1.9 grams of liquid concentrate hashish would remain clearly a misdemeanor.


Conclusion

Because recreational marijuana use remains illegal in Ohio, dabs, wax, shatter, butane hash oil, and marijuana food will all rise in popularity due to their high potency and discrete consumption. Until the legislature clearly states its intent as to how possession of these newer products should be criminally charged, we really have more questions than answers. While possession of the marijuana plant or traditional hashish is clearly a misdemeanor, possession of the pure THC chemical compound in other forms, even in relatively small amounts, could result in felony charges as Ohio law is presently constituted. If you or someone you know has been charged with any crime, it is imperative that you seek out trained, experienced legal representation.


-John A. Boyd

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