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If Issue 1 passes, what happens to fentanyl cases?

Posted October 29, 2018 2:59 p.m. EDT

DAYTON, Ohio -- One of the most confusing aspects of State Issue 1 is how people caught with large amounts of fentanyl would be handled in the court system.

Issue 1 is a constitutional amendment on the Nov. 6 ballot that would convert some lower-level drug felonies -- felony 4 and felony 5 charges -- to misdemeanors. The issue also dictates that offenders serve no prison time for the first two offenses.

The proposed reform measure, which is aimed at saving money now used for incarcerating drug defendants and allowing more people to get into treatment, has triggered a war of words between supporters and opponents, particularly over its potential impact on fentanyl cases.

Fentanyl -- the opiate that is 100 times more powerful than morphine and was responsible for 71 percent of overdose deaths in Ohio in 2017 -- has been a tough substance for the courts to wrangle because it comes in so many forms.

In addition to the illicit powder that is bought on the street, fentanyl is manufactured in tablets, patches, nasal sprays, strips that go under the tongue and other ways. Used medically as a painkiller, it has become a popular -- and potent -- street drug that is responsible for thousands of local deaths in recent years.

Opponents of Issue 1 say someone possessing up to 19.99 grams of fentanyl could be charged with a misdemeanor and avoid prison under the proposed amendment, even though that amount of fentanyl has the potential to kill thousands of people. The current threshold for a third-degree felony for powdered fentanyl, the type often encountered by law enforcement, is 20 grams.

Attorney General Mike DeWine, who is the Republican nominee for governor and a vocal opponent of Issue 1, says trafficking convictions are difficult to get, and that felony 4 and 5 charges are a valuable tool to stem the flow of drugs to Ohio communities.

But supporters of Issue 1 say it is rare for someone with a large quantity of fentanyl to be charged with felony 4 or 5 possession. Instead, they say, prosecutors go after those individuals for drug trafficking, and that would not change under the ballot measure.

"Even 10 grams ... is handled as trafficking and will continue to be charged as trafficking and people will go to prison," said Stephen JohnsonGrove, deputy director for policy with the Ohio Justice and Policy Center and the author of Issue 1.

A recent story in the Dayton Daily News pointed to laws concerning bulk amounts of controlled substances that allow individuals caught with much less than 20 grams of fentanyl to be charged with high-level felonies and sent to prison whether or not Issue 1 passes.

But the handling of fentanyl leaves a lot of room for interpretation. And the potential impact is further complicated by a recent court case and legislation that is set to take effect Wednesday, a week before Election Day.

With so little time before the election, this story is designed to clear up some of the confusion surrounding the potential impact on fentanyl cases if the proposed amendment becomes law.

State v. Pountney

The legal standard for a bulk amount for most types of fentanyl under Ohio law is "20 grams or 5 times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual."

But a January Ohio Supreme Court ruling illustrated how complicated determining a maximum daily dose for the various forms of fentanyl can be.

Mark Pountney was indicted in Cuyahoga County on multiple charges including possession of "at least five, but not more than 50 times the bulk amount of fentanyl," which is a second-degree felony.

Pountney was caught with 10 fentanyl patches that he had stolen from a CVS pharmacy. Each of the patches delivered 50 micrograms of fentanyl per hour. He was convicted based on testimony from a pharmacist who used the maximum daily dose for morphine to calculate that two fentanyl patches were equivalent to a bulk amount of fentanyl.

But Pountney's lawyers argued that the state failed to prove its case because the manual the pharmacist used to make his calculation did not specify a maximum daily dose for fentanyl patches. An appeals court agreed and so did the Supreme Court.

"State may not rely on usual dose range of morphine to establish bulk amount of transdermal fentanyl," the ruling states. Instead, the court ruled, the state must use one of seven approved reference guides listed in the Ohio administrative code to determine whether the fentanyl seized is a bulk amount. The guide must also specify a maximum daily dose for the specific type of fentanyl seized, according to the court.

Although the court provided some clarity about certain types of fentanyl cases, law enforcement officials say most criminal cases involve illicit powdered fentanyl, not patches. The State of Ohio Pharmacy Board, which produces one of the seven approved guides mentioned in the court decision, calculates maximum daily doses of almost all forms of fentanyl, including patches. But the pharmacy board does not calculate a maximum daily dose for illicit, powdered fentanyl because the drug is not prescribed by a doctor.

"In the cases our members prosecute, the fentanyl involved is most often not pharmaceutical quality," said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, which is opposed to Issue 1. "It is something that has been shipped here illegally from China. It is street quality, often mixed with other illegal drugs like heroin or meth."

Tobin argues that there is no maximum daily dose for the form of fentanyl that most often results in criminal charges, and that the legal standard is 20 grams. Anything less, he said, would fall under the Issue 1 threshold for a misdemeanor charge.

"Because the maximum daily dosage does not apply to street drugs -- since no amount of a street drug is safe to consume -- you have to base the charge on weight," he said. "Therefore, up to 19.9 grams of it would become a misdemeanor under State Issue 1."

There is fierce pushback on that point by the supporters of Issue 1, however, who say the amendment does nothing to prevent prosecutors from charging people caught with large amounts of fentanyl with trafficking. The instances of drug dealers avoiding prison if the amendment becomes law would be extremely small, they say.

"There is a way to deal with all, or nearly all, those fentanyl cases as trafficking," JohnsonGrove said. "The sky will definitely not fall."

Senate Bill 1

A recent bill passed by the legislature, Senate Bill 1, has added to the confusion.

The bill was designed to lower the quantity of fentanyl that would be considered a bulk amount and to increase penalties for both possession and trafficking charges.

As of next week, when the bill becomes law, possessing between 50 and 100 unit doses -- or 5 to 10 grams -- will be a third-degree felony charge. A unit dose is one separately administered unit, such as one pill.

If Issue 1 fails, this new system will remain in place. But if Issue 1 passes, it will negate the changes and revert back to the old definitions.

JohnsonGrove said the language of the proposed amendment was finalized Dec. 1, 2017, and its provisions are applicable to Ohio's laws as they stood on Jan. 1, 2018.

"We thought the legislature would pass SB 1 before the end of 2017," he said. January 1 was chosen so that legislators couldn't undo the proposals in Issue 1 before the voters got a chance to weigh in, according to JohnsonGrove.

"We had to put a stake in the ground, because if we didn't, the legislature could invalidate the whole amendment," he said.

If Issue 1 passes, JohnsonGrove said lawmakers still have the ability to tighten drug-trafficking laws.

The Ohio Criminal Justice Recodification Committee drafted a bill that would make trafficking presumptive at certain quantity levels, he said.

"That could be one of the first things the legislature does (if Issue 1 passes)," JohnsonGrove said.

Story Filed By Cox Newspapers

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