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Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience:  I have 15 years experience in criminal litigation including several years as a felony prosecutor
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Hi,My friend is being charged with possession of drug abuse

Resolved Question:

Hi,

My friend is being charged with possession of drug abuse instrument in the state of Ohio for possession of a bong used to smoke Salvinorin A (Salvia), a schedule 1 controlled substance. Salvia is a psychedelic plant legal in many states in the USA. The plant's active ingredient is Salvinorin A, which is released into the body by smoking similar to marijuana.

Seeking advice regarding an analysis of the statue.

The Drug Abuse Instrument State (ORC 2925.12) states:

(A) No person shall knowingly make, obtain, possess, or use any instrument, article, or thing the customary and primary purpose of which is for the administration or use of a **dangerous drug***, other than marihuana, when the instrument involved is a ***hypodermic or syringe***, whether or not of crude or extemporized manufacture or assembly, and the instrument, article, or thing involved has been used by the offender to unlawfully administer or use a dangerous drug, other than marihuana, or to prepare a dangerous drug, other than marihuana, for unlawful administration or use.

(emphasis on 'dangerous drug' and 'hypodermic or syringe')

Dangerous drug is defined in ORC 4729.01 as:

(F) “Dangerous drug” means any of the following:

(1) Any drug to which either of the following applies:

(a) Under the “Federal Food, Drug, and Cosmetic Act,” 52 Stat. 1040 (1938), 21 U.S.C.A. 301, as amended, the drug is required to bear a label containing the legend “Caution: Federal law prohibits dispensing without prescription” or “Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian” or any similar restrictive statement, or the drug may be dispensed only upon a prescription;

(b) Under Chapter 3715. or 3719. of the Revised Code, the drug may be dispensed only upon a prescription.

(2) Any drug that contains a schedule V controlled substance and that is exempt from Chapter 3719. of the Revised Code or to which that chapter does not apply;

(3) Any drug intended for administration by injection into the human body other than through a natural orifice of the human body.

--MY COMMENTS--

My friend was NOT found in possession of any hypodermic or syringe instruments. Also, salvinorin A (salvia) is not intended for administration into the human body other than through a natural orifice of the human body. It is smoked... similar to marijuana.

--QUESTION TO BE ANSWERED--

Is my analysis correct? Could the case be thrown out with a motion to dismiss? When are motion to dismiss generally granted?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Joseph replied 2 years ago.

Please understand that the policies of Just Answer prohibit us from stating definitively that a motion to dismiss would absolutely be granted. Similarly, the ethical rules of the Bar Association would prohibit such a statement as well. With that in mind...

 

I would suggest that your analysis is accurate. As you have outlined, the statute under which your friend is charged requires the use of a "hypodermic or syringe". Your friend though, was apparently charged while possessing a smoking device. As a smoking device is neither a "hypodermice" or a "syringe", a motion to dismiss would seem prudent.

 

As a note, your friend should also keep in mind that a violation of 2925.12 is a second degree misdemeanor. Meaning, the charge is rather minor and the penalties are typically rather lenient. Additionally, the mere filing of the motion may encourage the prosecutor to make a rather reasonable offer.

 

Please let me know if anything requires clarification.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 2 years ago.

Hi,

 

I really appreciate your input. I have one last question and I will gladly accept your answer. Are there different types of motions to dismiss in criminal cases? For example, could the court grant the motion to dismiss but allow the prosecutor to amend the charges to accurately reflect the evidence? Will double jeopardy be an appropriate defense against new charges?

Expert:  Joseph replied 2 years ago.

It is theoretically possible for a motion to dismiss to be granted and for the prosecutor to then come in and file a different charge. Having said that, I would suggest that such a result would be unusual.

 

When a prosecutor files a charge, it is his ethical obligation to file all relevant charges and to only file charges that he believes he can prove in court beyond a reasonable doubt. Meaning, if a motion to dismiss were granted as to the filed charges, then there should not be any charge remaining that the prosecutor believes to be appropriate.

 

As to "different types" of motions to dismiss, one might file a motion to dismiss arguing that the allegations do not arise to the level of a crime, or that the statute of limitations ran before charges were filed, or that there was prosecutorial misconduct or that jeopardy had already attached in a previous case. These are all examples that come to mind.

 

While I do not have statistical data available and I have never conducted a scientific survey, I would suggest that new charges are filed after a successful motion to dismiss less than 10% of the time. As a general rule, a successful motion to dismiss will effectively end the case.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience: I have 15 years experience in criminal litigation including several years as a felony prosecutor
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