(a) No person shall knowingly obtain, possess or use a controlled substance or a controlled substance analog.
(b) (1) This section does not apply to any of the following:
A. Manufacturers, licensed health professionals authorized to prescribe drugs, pharmacists, owners of pharmacies, medical marijuana patients and caregivers, and other persons whose conduct is in accordance with R.C. Chapters 3719, 3796, 4715, 4723, 4729, 4730, 4731, and 4741.
B. 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.
C. 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, and is sold, offered for sale, prescribed, dispensed, or administered for that purpose in accordance with that Act.
D. Any person who obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs if the prescription was issued for a legitimate medical purpose and not altered, forged, or obtained through deception or commission of a theft offense. As used in this division (b)(1)D., “deception” and “theft offense” have the same meanings as in R.C. § 2913.01.
(2) A. As used in division (b)(2) of this section:
1. “Community addiction services provider.” Has the same meaning as in R.C. § 5119.01.
2. “Community control sanction.” Has the same meanings as in R.C. § 2929.01
3. “Drug treatment program.” Has the same meanings as in R.C. § 2929.01.
4. “Health care facility.” Has the same meaning as in R.C. § 2919.16.
5. “Minor drug possession offense.” A violation of this section or R.C. § 2925.11 that is a misdemeanor or a felony of the fifth degree.
6. “Peace officer.” Has the same meaning as in R.C. § 2935.01.
7. “Post-release control sanction.” Has the same meaning as in R.C. § 2967.28.
8. “Public agency.” Has the same meaning as in R.C. § 2930.01.
9. “Qualified individual.” A person who is not on community control or post-release control and is a person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a drug overdose, a person who experiences a drug overdose and who seeks medical assistance for that overdose, or a person who is the subject of another person seeking or obtaining medical assistance for that overdose as described in division (b)(2)B. of this section.
10. “Seek or obtain medical assistance.” Includes, but is not limited to making a 9-1-1 call, contacting in person or by telephone call an on-duty peace officer, or transporting or presenting a person to a health care facility.
B. Subject to division (b)(2)F. of this section, a qualified individual shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense if all of the following apply:
1. The evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the qualified individual seeking the medical assistance or experiencing an overdose and needing medical assistance.
2. Subject to division (b)(2)G. of this section, within 30 days after seeking or obtaining the medical assistance, the qualified individual seeks and obtains a screening and receives a referral for treatment from a community addiction services provider or a properly credentialed addiction treatment professional.
3. Subject to division (b)(2)G. of this section, the qualified individual who obtains a screening and receives a referral for treatment under division (b)(2)B.2. of this section, upon the request of any prosecuting attorney, submits documentation to the prosecuting attorney that verifies that the qualified individual satisfied the requirements of that division. The documentation shall be limited to the date and time of the screening obtained and referral received.
C. If a person is found to be in violation of any community control sanction and if the violation is a result of either of the following, the court shall first consider ordering the person’s participation or continued participation in a drug treatment program or mitigating the penalty specified in R.C. § 2929.13, 2929.15, or 2929.25, or any substantially equivalent municipal ordinance, whichever is applicable, after which the court has the discretion either to order the person’s participation or continued participation in a drug treatment program or to impose the penalty with the mitigating factor specified in any of those applicable sections:
1. Seeking or obtaining medical assistance in good faith for another person who is experiencing a drug overdose;
2. Experiencing a drug overdose and seeking medical assistance for that overdose or being the subject of another person seeking or obtaining medical assistance for that overdose as described in division (b)(2)B. of this section.
D. If a person is found to be in violation of any post-release control sanction and if the violation is a result of either of the following, the court or the parole board shall first consider ordering the person’s participation or continued participation in a drug treatment program or mitigating the penalty specified in R.C. § 2929.141 or 2967.28, whichever is applicable, after which the court or the parole board has the discretion either to order the person’s participation or continued participation in a drug treatment program or to impose the penalty with the mitigating factor specified in either of those applicable sections:
1. Seeking or obtaining medical assistance in good faith for another person who is experiencing a drug overdose;
2. Experiencing a drug overdose and seeking medical assistance for that emergency or being the subject of another person seeking or obtaining medical assistance for that overdose as described in division (b)(2)B. of this section.
E. Nothing in division (b)(2)B. of this section shall be construed to do any of the following:
1. Limit the admissibility of any evidence in connection with the investigation or prosecution of a crime with regards to a defendant who does not qualify for the protections of division (b)(2)B. of this section or with regards to any crime other than a minor drug possession offense committed by a person who qualifies for protection pursuant to division (b)(2)B. of this section for a minor drug possession offense;
2. Limit any seizure of evidence or contraband otherwise permitted by law;
3. Limit or abridge the authority of a peace officer to detain or take into custody a person in the course of an investigation or to effectuate an arrest for any offense except as provided in that division;
4. Limit, modify, or remove any immunity from liability available pursuant to law in effect prior to September 13, 2016 to any public agency or to an employee of any public agency.
F. Division (b)(2)B. of this section does not apply to any person who twice previously has been granted an immunity under division (b)(2)B. of this section. No person shall be granted an immunity under division (b)(2)B. of this section more than two times.
G. Nothing in this section shall compel any qualified individual to disclose protected health information in a way that conflicts with the requirements of the “Health Insurance Portability and Accountability Act of 1996,” 104 Pub. L. No. 191, 110 Stat. 2021, 42 U.S.C. §§ 1320d et seq., as amended, and regulations promulgated by the United States Department of Health and Human Services to implement the act or the requirements of 42 C.F.R. Part 2.
(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 Schedule II, with the exception of marihuana or hashish, whoever violates division (a) of this section is guilty of a felony to be prosecuted under appropriate state law.
(2) If the drug involved in the violation is a compound, mixture, preparation, or substance included in Schedule III, Schedule IV, or Schedule 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. of this section, possession of drugs is a misdemeanor of the first degree or, if the offender previously has been convicted of a drug abuse offense, a felony to be prosecuted under appropriate state law.
B. If the amount of the drug involved equals or exceeds the bulk amount, possession of drugs is a felony to be prosecuted under appropriate state law.
(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. or (c)(3)C. of this section, possession of marihuana is a civil infraction subject to a maximum fine of up to $25.
B. If the amount of the drug involved equals or exceeds 100 grams but is less than 200 grams, possession of marihuana is a civil infraction subject to a maximum fine of up to $50.
C. If the amount of the drug involved equals or exceeds 200 grams, possession of marihuana is a felony to be prosecuted under appropriate state law.
(4) 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)(4)B. or (c)(4)C. of this section, possession of hashish is a civil infraction subject to a maximum fine of up to $25.
B. If the amount of the drug involved equals or exceeds five grams but is less than ten grams of hashish in a solid form or equals or exceeds one gram but is less than two grams of hashish in a liquid concentrate, liquid extract, or liquid distillate form, possession of hashish is a civil infraction subject to a maximum fine of up to $50.
C. If the amount of the drug involved equals or exceeds ten grams of hashish in a solid form or equals or exceeds two grams of hashish in a liquid concentrate, liquid extract, or liquid distillate form, possession of hashish is a felony to be prosecuted under appropriate state law.
(5) If the drug involved in the violation is a compound, mixture, preparation, or substance that is a combination of a fentanyl-related compound and marihuana, one of the following applies:
A. Except as otherwise provided in division (c)(5)B. of this section, the offender is guilty of possession of marihuana and shall be punished as provided in division (c)(3) of this section. Except as otherwise provided in division (c)(5)B. of this section, the offender is not guilty of possession of a fentanyl-related compound under R.C. § 2925.11(C)(11) and shall not be charged with, convicted of, or punished under R.C. § 2925.11(C)(11) for possession of a fentanyl-related compound.
B. If the offender knows or has reason to know that the compound, mixture, preparation, or substance that is the drug involved contains a fentanyl-related compound, the offender is guilty of possession of a fentanyl-related compound and shall be punished under R.C. § 2925.11(C)(11).
(6) If the drug involved in the violation is a compound, mixture, preparation, or substance that is a combination of a fentanyl-related compound and any Schedule III, Schedule IV, or Schedule V controlled substance that is not a fentanyl-related compound, one of the following applies:
A. Except as otherwise provided in division (c)(6)B. of this section, the offender is guilty of possession of drugs and shall be punished as provided in division (c)(2) of this section. Except as otherwise provided in division (c)(6)B. of this section, the offender is not guilty of possession of a fentanyl-related compound under R.C. § 2925.11(C)(11) and shall not be charged with, convicted of, or punished under R.C. § 2925.11(C)(11) for possession of a fentanyl-related compound.
B. If the offender knows or has reason to know that the compound, mixture, preparation, or substance that is the drug involved contains a fentanyl-related compound, the offender is guilty of possession of a fentanyl-related compound and shall be punished under R.C. § 2925.11(C)(11).
(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) (1) In addition to any prison term or jail term authorized or required by division (c) of this section and R.C. § 2929.13, 2929.14, 2929.22, 2929.24, and 2929.25, or any substantially equivalent municipal ordinance, and in addition to any other sanction that is imposed for the offense under this section or R.C. § 2929.11 through 2929.18, or R.C. § 2929.21 to 2929.28, or any substantially equivalent municipal ordinance, the court that sentences an offender who is convicted of or pleads guilty to a violation of division (a) of this section may suspend the offender’s driver’s or commercial driver’s license or permit for not more than five years. However, if the offender pleaded guilty to or was convicted of a violation of R.C. § 4511.19 or a substantially equivalent municipal ordinance or the law of another state or the United States arising out of the same set of circumstances as the violation, the court shall suspend the offender’s driver’s or commercial driver’s license or permit for not more than five years.
(2) If the offender is a professionally licensed person, in addition to any other sanction imposed for a violation of this section, the court immediately shall comply with R.C. § 2925.38.
(f) (1) Any offender who received a mandatory suspension of the offender’s driver’s or commercial driver’s license or permit under this section prior to September 13, 2016 may file a motion with the sentencing court requesting the termination of the suspension. However, an offender who pleaded guilty to or was convicted of a violation of R.C. § 4511.19 or a substantially equivalent municipal ordinance or law of another state or the United States that arose out of the same set of circumstances as the violation for which the offender’s license or permit was suspended under this section shall not file such a motion.
(2) Upon the filing of a motion under division (f) of this section, the sentencing court, in its discretion, may terminate the suspension.
(Ord. 2020-16. Passed 9-8-20.)
Statutory reference:
Felony drug possession offenses, see R.C. § 2925.11(C)