Columbus Judge dismisses Drug Analog case against prominent Columbus businessman

On February 19, 2014, two major Columbus drug trafficking cases filed against our client in the Franklin County Court of Common Pleas (cases 12 CR 3898 and 12 CR 5477) were dismissed on the grounds that the drugs at issue in the case, alleged “controlled substance analogs,” were not illegal to possess or sell under Ohio law at the time they were allegedly possessed and sold.  Because of that ruling, our client, a prominent Columbus businessman, is no longer facing criminal charges.

In August and October of 2012, our Columbus client was indicted by the Franklin County, Ohio grand jury for 15 felony counts of drug trafficking and drug possession.  At the time of the indictment, something was a controlled substance if and only if it was listed in Schedules I through V set out in Ohio Revised Code section 3719.41 and amended by section 3719.43 or section 3719.44.  None of the substances our Columbus client was indicted for selling or possessing were, at the relevant time, listed on the State or Federal Drug Schedules.  The State, acknowledging this fact, instead indicted him for selling “controlled substance analogs.”  That is, items which are similar to controlled substances.

But, under the law in Ohio, as it stood at the time of these alleged offenses, selling or possessing a “controlled substance analog” wasn’t a crime.  It wasn’t until the end of December, 2012, that the Legislature and Governor acted to make it illegal to sell substances which are analogous to controlled substances.

House Bill 334, which was signed into law on December 26, 2012, states its purpose in the preamble.  It declares itself:

AN ACT . . . to create the offenses of trafficking in and possession of controlled substance analogs.

In other words, even the Ohio Legislature recognized and understood that it was not a crime to possess or traffick in controlled substance analogs before they “created” the offenses in December of 2012.

If you look in the Ohio Revised Code versions prior to December of 2012, you won’t find a single reference anywhere in the Criminal Title, Title 29, to “controlled substance analogs” nor will you find a single scrap of law making it criminally punishable to sell things which are similar to controlled substances.

Under Ohio law, criminal statutes are to be construed strictly against the state, and liberally construed in favor of the accused.  Ohio Rev. Code § 2901.04(A) (2004).  In short, if there is any ambiguity about whether what Smith did was made criminally punishable, that ambiguity must be construed in our Columbus client’s favor and against the Prosecution.

The Law Prior to December 20, 2012

Prior to December 2012, section 3719.01 of the Health and Safety Title provided many definitions that were not adopted by, or applicable to, the Criminal Title; for instance, “category III license” and “hospital” were defined therein.  Ohio Rev. Code § 3719.01(J), (FF) (2011).  Also among the definitions not adopted by the old version of the Criminal Title was a definition of something called a “controlled substance analog.” Ohio Rev. Code § 3719.01(HH) (2011); Ohio Rev. Code § 2925.01(A) (2008) (adopting 17 definitions, “controlled substance analog” not among them).

The Ohio Supreme Court gives guidance in construing statutes with the canon expressio unius est exclusio alterius.  That canon “tells us that the express inclusion of one thing [in the language of a statute] implies the exclusion of the other.” Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio- 4353, P24 citing Black’s Law Dictionary (8th Ed.2004) 620.

Furthermore, under Revised Code section 2901.03(A), no conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code. Ohio Rev. Code § 2901.03(A) (1974).  An offense is defined when one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or failure to meet such duty. Ohio Rev. Code § 2901.03(B) (1974).  At the time our Columbus client was indicted, Chapter 2925 did not state a positive prohibition against trafficking in or possession of “controlled substance analogs,” nor did any section of the Revised Code provided a penalty for trafficking in or possession of “controlled substance analogs.”

In other words, despite the fact that the Health and Safety Title had, even in pre-December 2012, a definition of “controlled substance analog,” nowhere did the Criminal Title of the Ohio Revised Code adopt a definition of “controlled substance analog.”

At the time our Columbus client was indicted, the two statutes he was charged with violating read:

(A)    No person shall knowingly do any of the following:

(1)    Sell or offer to sell a controlled substance;

(2)    Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.

Ohio Rev. Code § 2925.03(A)(1-2) (2011).

(A)    No person shall knowingly obtain, possess, or use a controlled substance.

Ohio Rev. Code § 2925.11(A) (2011).

Neither of these two Ohio statutes said anything whatsoever of controlled substance analogs.

The Law After December 20, 2012

Effective December 20, 2012, the Ohio Legislature announced its intention “to create the offenses of trafficking in and possession of controlled substance analogs . . . .” H.B. 334, 129th Gen. Assemb., Reg. Sess., Synopsis (Ohio 2011-12) (emphasis added).  Accordingly, unlike the pre-December 2012 version, section 2925.01 now expressly adopts the definition of “controlled substance analog” set out in the Title 37.

(A) “Administer,” “controlled substance,” “controlled substance analog,” “dispense,” “distribute,” “hypodermic,” “manufacturer,” “official written order,” “person,” “pharmacist,” “pharmacy,” “sale,” “schedule I,” “schedule II,” “schedule III,” “schedule IV,” “schedule V,” and “wholesaler” have the same meanings as in section 3719.01 of the Revised Code.
Ohio Rev. Code § 2925.01(A) (2012) (emphasis added).

Moreover, the statutes setting out the criminal offenses now expressly make it a crime to sell or possess a controlled substance analog:

(A)    No person shall knowingly do any of the following:
(1)    Sell or offer to sell a controlled substance or a controlled substance analog;

(2)    Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

Ohio Rev. Code § 2925.03(A)(1-2) (2012) (emphasis added).

(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.

Ohio Rev. Code § 2925.11(A)(1) (2012) (emphasis added).

The entirety of our Columbus client’s allegedly illegal conduct took place, according to the indictments, from February of 2012 through July of 2012.  In fact, our Columbus client was even indicted in August and October of 2012.  In other words, our Columbus client’s conduct was over and he was indicted before the Ohio Legislature ever created the crimes for which he is being prosecuted – before they, on December 20, 2012, “create[d] the offenses of trafficking in and possession of controlled substance analogs . . . .” H.B. 334, 129th Gen. Assemb., Reg. Sess., Synopsis (Ohio 2011-12) (emphasis added).   Thus, even if our Columbus client did what the Prosecution’s indictment alleges he did, it was not a crime when he did it.

The Prosecution’s only Counterargument Failed

The Prosecution argued that, pre-December 2012, the Health and Safety Title contained a section, 3719.013, which provided:

“A controlled substance analog, to the extent intended for human consumption, shall be treated for purposes of any provision of the Revised Code as a controlled substance in schedule I.”

Ohio Rev. Code § 3719.013 (2011).

They contended that this means that, as it was a crime to possess schedule I substances even pre-December 2012, so too it was a crime to possess “controlled substance analogs.”

However, there are only three ways to add, transfer or remove a controlled substance from Ohio’s schedules. See, 2001 Op. Att’y Gen. No. 2001-014.  First, the Ohio schedule of controlled substances is subject to modification by the Ohio Board of Pharmacy pursuant to Revised Code § 3719.44.  Second, when the United States Attorney General adds, transfers or removes a substance from the federal schedule of controlled substances, the corresponding Ohio schedules are automatically amended pursuant to Revised Code § 3719.43. Third, the General Assembly may independently act to add drugs to the controlled substance schedules that have not been placed there by federal action or the State Board of Pharmacy.

Recognizing that only chemicals listed in the schedules were “controlled substances” for purposes of the Criminal Title, the Ohio Legislature found it necessary to, in December 2012, “create the offenses of trafficking in and possession of controlled substance analogs . . . .” H.B. 334, 129th Gen. Assemb., Reg. Sess., Synopsis (Ohio 2011-12) (emphasis added).  If it was already an offense, why would they have needed to “create” it?  Would they not, more likely, have said that their changes to the law were intended to “clarify” or “modify” or “alter” the offense rather than “create” it?
Moreover, the Legislature has expressly disapproved of the Prosecution’s expansive interpretation of the reach of section 3719.013 by, on December 20, 2012, amending section 3719.013 to read as follows:

Except as otherwise provided in section 2925.03 or 2925.11 of the Revised Code, a controlled substance analog, to the extent intended for human consumption, shall be treated for purposes of any provision of the Revised Code as a controlled substance in schedule I.”

Ohio Rev. Code § 3719.013 (2012) (emphasis added).

In short, the Prosecution wanted to read 3719.013 of the Health and Safety Title as if it created new drug possession and trafficking offenses in 2011, notwithstanding the fact that the Ohio Legislature clearly did not read it that way or approve of it being read that way, and notwithstanding the fact that ambiguity in criminal law must be strictly construed against the Prosecution. Ohio Rev. Code § 2901.04(A) (2004).

Furthermore, even if the State’s position were correct, and the Criminal Title prohibited the sale of controlled substance analogs based on this obscure, unincorporated, unmentioned nugget hiding in the Health and Safety title, the CONSTITUTION poses a problem.  That is, the Constitution requires that a penal statute must define an offense with sufficient definiteness to enable ordinary people to understand what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352, 357 (1983).  There is no way an ordinary person would possibly have imagined before December 2012, that “controlled substance analogs” which were never once mentioned or incorporated in the Criminal Title were meant to be punishable by criminal sanction.  Even the Ohio Legislature obviously didn’t believe that possession and sale of controlled substance analogs was already illegal, otherwise they wouldn’t have wasted their time, in 2012 “create[ing] the offenses of trafficking in and possession of controlled substance analogs.”

At the same time that the Sheriff’s Department was conducting the investigation that led to this case, the Columbus Police Department was conducting a parallel investigation into the same conduct.  The result of that CPD investigation was to close the case based on the conclusion that what Smith was doing was not criminal at the time when he was doing it.

Franklin County, Ohio Common Pleas Judge Beatty agreed that, prior to December of 2012, trafficking in and possession of controlled substance analogs was not a crime under Ohio law, and therefore the charges against our Columbus client had to be dismissed.

This result was a great victory for our Columbus client.

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