This is a common question I receive from clients and the answer, surprisingly, is “no.” Testing positive for marijuana, and failing a drug test, is not sufficient to find that a person possessed marijuana. Once you smoke or consume marijuana (or any other drug), you are no longer in “possession” of marijuana nor do you have control over it. Thus, unless you also have marijuana in your possession (e.g., in your pocket), you cannot be found guilty of marijuana possession.

One case that dealt with this issue is Logan v. Cox. In that case, Cox was charged with underage consumption after officers smelled alcohol on Cox’s breath, Cox submitted to a nystagmus test and failed, and the officer administered a breathalyzer, which found that Cox’s blood-alcohol content was well over the legal limit. Cox’s attorney filed a motion to dismiss, arguing that the state could not prove that Cox possessed alcohol. Cox was later found guilty at trial.

On appeal, Cox argued that the evidence presented at trial was insufficient to prove that he possessed alcohol. Specifically, Cox argued that the presence of alcohol in one’s system does not constitute possession of alcohol. Once the alcohol was consumed, Cox was no longer in possession or control of the alcohol. The state argued that the presence of alcohol in one’s system is evidence of prior possession of alcohol.

Resolution of this case depended upon the definition of “possess.” The statute in effect at the time did not define the term “possess” and Ohio Revised Code (ORC) 1.42 provided that words were to be construed in accordance with grammar and usage. The court relied upon Black’s Law Dictionary, which defined “possess” as:

• “To occupy in person; to have in one’s actual and physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to.”
• “Term ‘possess,’ under narcotic drug laws, means actual control, care and management of the drug. Defendant ‘possesses’ controlled substance when defendant knows of substance’s presence, substance is immediately accessible, and defendant exercises ‘dominion or control’ over substance.”

In addition to Black’s Law Dictionary, ORC 2925.01(K) provides that the terms “possess” and “possession” as “having control over a thing or substance.”

Thus, the mere presence of alcohol or drugs in someone’s system, alone, is not sufficient to establish possession of that drug or alcohol. The only way to be charged with marijuana possession is if the actual marijuana is within your presence or control. Failing a drug test is not enough to convict you of marijuana possession.

Columbus and Delaware, Ohio Marijuana Attorney

If you have been charged with possession of marijuana in Columbus or Delaware, Ohio, contact Attorney David Johnson at Johnson Legal, LLC to discuss your case. An experienced and knowledgeable drug defense lawyer in Columbus and Delaware, Ohio can help you fight the charge and achieve the best possible outcome. Contact Attorney David Johnson at (614) 987-0192 or send an email to schedule a consultation to discuss your marijuana case.