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Ohio Supreme Court Reverses Decision to Not Include Filler in Cocaine Weight

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The Ohio Supreme Court reversed its previous decision in State v. Gonzales (Gonzalez I) that required the state to prove the weight of actual cocaine, without including any filler materials, when prosecuting cocaine-possession offenses. In a 5-2 decision, the court ruled that any fillers part of the usable drug must be included when considering the appropriate penalty for cocaine possession. Two justices who ruled in favor of the original 4-3 decision retired in December of 2016 due to age.

One reason for the reversal cited in the decision was:

“Importantly, the fillers, or adulterants, that are part of powder cocaine are not intended to be removed before consumption. Indeed, the fillers are an inherent part of powder cocaine.”

While the court voted 5-2 to reverse its previous decision, one of those five voting in the affirmative, Justice Patrick Fischer, voted against the motion for reconsideration. In his opinion concurring in part and dissenting in part, he stated that:

“This court issued a number of decisions at the end of 2016 in which motions for reconsideration were not ripe for review until after the beginning of this year. The timing of these motions places this court in the unusual position of being asked to put itself in the shoes of the previous court to determine whether that court erred in its deliberations to the extent that its decisions need to be corrected. Recognizing that I was not privy to the previous court’s deliberations and respecting the precedent established by that court’s decisions, I have voted to deny all motions asking this court to reconsider decisions issued before I took my seat on the bench.”

Justice William O’Neill took that line of thinking a step further in his dissenting opinion by stating that:

“Each of the opinions in Gonzales I was fully and carefully considered by the seven justices of the court. The only thing that has changed since Gonzales I is the makeup of the court.”

A key issue the justices argued over was the lack of a clear definition of the “purity” of cocaine. Justice O’Neill concluded his dissenting opinion with a forceful rebuke of the five justices who voted to confirm the change:

“From this date forward, the statute in question will be read to mean that 2.99 grams of baby powder will now be considered to be 3.00 grams of cocaine if there is even a scintilla of the controlled substance found in the “mixture.””

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