Ohio Supreme Court: Presence of drugs in body doesn’t equal possession

The state's highest court found that a woman can't be charged with possession of drugs in Seneca County just because she and her newborn had drugs in their systems.

The Ohio Supreme Court took up the case after Kelly Foreman appealed her conviction on felony drug possession charges, which he was charged with after giving birth in March 2018.

According to court documents, the baby “exhibited symptoms of neonatal-abstinence syndrome" and urine and umbilical cord tissue tests showed the presence of cocaine.

While Foreman admitted to using drugs while pregnant, she said she hadn't used any drugs in her Seneca County home, and court records showed she was not “in actual or constructive control of any drugs in Seneca County."

A Third District Court of Appeals said because the drug tests had happened in the county, they determined the venue for the criminal charges.

The ACLU previously argued the case would have far-reaching implications for drug cases in the state, making it possible to be charged with possession for “simply being in Ohio."

In the state supreme court opinion, the justices acknowledged that “possession" in terms of holding a drug in the bloodstream or urine has not been addressed by the court before. But they said other courts have seen similar cases, and held that the presence of a controlled substance in someone's blood or urine “does not establish that the person possessed the controlled substance."

“The reason underlying those conclusions is that when a controlled substance is assimilated into a person's body, the person loses the ability to control or possess the substance," Chief Justice Maureen O'Connor wrote in the ruling.

Because Foreman no longer had control of the substance, the high court found that tests proving the presence of cocaine were “insufficient to prove that she possessed cocaine in Seneca County."

O'Connor also said the court found the prosecution's side of the case “rather troubling" for the same reasons the ACLU took issue with the conviction in the case.

The court opinion said the argument that possession could be established through urine or umbilical cord testing leads to the possibility that a person could be charged with possession anywhere they test positive in the state, no matter where the drugs were when they were taken.

“For instance," O'Connor wrote. “Consider a person who ingests cocaine in Ashtabula County and then drives sober to Hamilton County a few days later. By the state's reasoning, that person could be charged with possession of cocaine in each and every county through which that person traveled, based on the sole fact that some assimilated form of cocaine remained in his system."

The justices were unanimous in reversing the appeals court decision and vacating Foreman's conviction in the case.

Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: info@ohiocapitaljournal.com. Follow Ohio Capital Journal on Facebook and Twitter.

Abortion ‘trigger bill’ coming to Ohio senate committee

A piece of legislation meant to go into effect if federal abortion rights protections are overturned will start its path through the Ohio legislature this week.

Senate Bill 123 is set to appear in the Ohio Senate Health Committee on Wednesday morning.

If passed, the bill would then await court challenges of the U.S. Supreme Court's Roe v. Wade decision, the ruling that legalized abortion nationwide. If challenges to Roe were successful, Ohio could then quickly ban abortion.

There is an exception in the bill for abortions when there is serious risk to the pregnant person's life, but written certification of the necessity is required, and “appropriate neonatal services for premature infants must exist at the facility where the physician performs or induces the abortion."

Currently, abortion is legal in the state of Ohio up to 22 weeks gestation.

The proposed legislation would also ban “as the crime of promoting abortion" possessing, selling or advertising “drugs, medicine, instrument or device to cause an abortion"

“Promoting abortion" is one of a few crimes defined under the bill, and would be a first-degree misdemeanor if passed. “Abortion manslaughter" would be a crime under the bill, treated as a first-degree felony punishable with a minimum of four to seven years in prison for “purposely taking the life of a child born by attempted abortion who is alive when removed from the…uterus."

As with other attempted legislation on abortion in the state, the punishment primarily lands on the physicians, leaving those having the abortions legally cleared and even able to file a wrongful death lawsuit if an abortion is performed in violation of the proposed legislation.

A physician could have their license revoked if found guilty of “abortion manslaughter," “criminal abortion," or “promoting abortion."

The language regarding “abortion manslaughter" is reminiscent of language in a different abortion-related bill seeking to punish doctors after “botched abortions." That bill seeks to prohibit inaction by doctors in the case of “failed" abortions, however, state data shows failed abortions are very rare.

Of abortions reported at 19 weeks or more gestation in the state's most recent data — which was available at the time the botched abortion bill was presented — only one pregnancy was found to be viable.

The Senate legislation isn't the first “trigger ban" that has been introduced in the General Assembly in the recent past. Last spring, a House bill was introduced by former state Rep. John Becker, also aiming to take effect if Roe v. Wade was overturned.

Abortion-rights advocates are planning to rally together at the Ohio Statehouse at 12:30 p.m. on Tuesday, the day before the committee meets to consider the trigger ban.

“With the stark reality that Ohio could be the next state where abortion is entirely inaccessible, now is the time to show up and fight for our communities," said Aileen Day, communications for Planned Parenthood Advocates of Ohio, in a statement.

Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: info@ohiocapitaljournal.com. Follow Ohio Capital Journal on Facebook and Twitter.

'It is plain wrong': Republican majority gerrymanders Ohio for another four years

With some using words like “disappointment" and “unease," Republican majority members of the Ohio Redistricting Commission passed maps of General Assembly districts on Thursday heavily favoring GOP supermajorities that will last four years, if they make it through the courts.

In a process that bypassed the midnight deadline by minutes, the commission split along party lines 5-2 and passed GOP-produced maps that they said were presented to the commission the night before.

Currently, Republicans hold a 64-35 supermajority in the Ohio House, and a 25-8 supermajority in the Ohio Senate. The new maps continue the supermajorities, which require 60+ seats and 22+ seats respectively.

Republicans said the maps for the House and Senate approved early Thursday morning reduced the GOP stronghold with a House breakdown of 62 seats to 37 Dems, and 23 to 10 in the Senate. Democrats and Dave's Redistricting App project a 65-seat GOP supermajority in the House.

Anti-gerrymandering advocates have repeatedly called for representation that actually reflects the make-up of voters. And Ohio voters amended the state constitution in 2015 to implement reform intended to produce bipartisan and fair districts, with 71.47% of voters supporting.

In an average of the last 16 statewide elections not including non-partisan judicial races, Republicans have won a 54% to 46% advantage.

As of 2020, 1.9 million Ohioans were registered Republican while 1.6 million were registered Democratic, for a ratio also of 54% to 46%. More than 4.5 million voters remain unaffiliated.

Nevertheless, the Republican majority said in a statement that because they've won 13 of 16 statewide elections they could be entitled to up to 81% of representation of the people, despite them only winning the average of 54% of the votes in those elections.

The GOP committee majority includes Ohio Gov. Mike DeWine, Secretary of State Frank LaRose, Auditor Keith Faber, Ohio House Speaker Bob Cupp and Ohio Senate President Matt Huffman. Voting against the maps were Democratic House Leader Emilia Sykes and Democratic state Sen. Vernon Sykes.

The only bipartisan agreement was a condemnation of how the process had gone, and the fact that there seemed to be no way to reach a 10-year map.

“Tonight, it has become clear to me that there will not be a compromise," said DeWine. “It's clear in talking to both sides that there's not going to be an agreement, and that we could go tomorrow or the next day or the next day, and it simply was not going to occur."

The Democratic legislators on the commission both objected to the maps as presented, with commission co-chair Sen. Vernon Sykes saying the map proposal “falls far below what's considered to be fair."

House Minority Leader Emilia Sykes said the maps were affront to women who earned the right to vote, and minorities who are protected by the Voting Rights Act.

“To have before today a map that summarily and arrogantly eliminates the ability for women like me…to engage in a process and have their votes heard is not only offensive, it is plain wrong," Sykes said.

The criticism of the process was broad, with Auditor Faber and Secretary of State LaRose both urging the commission to learn from its mistakes before congressional redistricting begins next month.

“I'm casting my yes vote with great unease," LaRose said. “I fear we'll be back in this room very soon."

The expectation of lawsuits was brought up quickly and early, with DeWine and others acknowledging that the courts would ultimately decide whether the maps fit the bill, or the process was constitutional.

“I'm not judging the bill one way or another, that's up for a court to do," DeWine said.

The condemnation from redistricting advocacy groups was swift, though the analysis of the maps is still ongoing.

“The Commission didn't reconvene until forty-five minutes before the midnight deadline and then enacted a map along party lines that disregards the letter and spirit of the reforms passed in 2015," wrote Common Cause Ohio executive director Catherine Turcer in a statement sent out by the Fair Districts Ohio coalition. “We are disappointed in both the process and the result."

Past court challenges, the discussion now turns to congressional districts representing the state, a process that should start in the next few weeks.


Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: info@ohiocapitaljournal.com. Follow Ohio Capital Journal on Facebook and Twitter.

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