Possession of Marijuana With Intent to Sell

Under Ohio law, there is not a specific statute prohibiting possessing marijuana with the intent to sell, but someone who does possess marijuana with the intent to sell could be penalized under Ohio’s trafficking statute. A conviction for this offense could result in serious repercussions, including a criminal record, lengthy prison sentences, a loss of certain professional licenses, and/or hefty fines.

Columbus Marijuana Possession with Intent to Sell Lawyer

If you have been charged with a marijuana possession offense in Columbus, Ohio or the surrounding areas, contact the Joslyn Law Firm today. It is imperative to hire an experienced attorney as soon as possible.

As a member of the National Organization for the Reform of Marijuana Laws, Brian Joslyn works tirelessly for individuals charged marijuana-related offenses. Call the Joslyn Law Firm at (614) 444-1900 for a free consultation today.


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Marijuana Possession With Intent to Sell Under Ohio Law

Marijuana Possession with Intent to Sell, or trafficking marijuana, is governed by the Ohio Rev. Code § 2925.03, which states a person shall not engage in any one or a combination of the following acts:

  • Sell or offer to sell a controlled substance.
  • Prepare to ship, transport or deliver a controlled substance when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender to another person.

Marijuana possession with the intent to sell, or trafficking marijuana, is comprised of five elements: possession, knowledge, intent, sale and reasonable cause to believe. While these factors may seem obvious at first glance, it is important to understand the legal implications of each in order to fully comprehend the nature of the offense.

  • Possession is defined as having dominion and control over the marijuana in question.
  • Knowledge involves awareness and deliberation, accompanied by the act of selling either at the present time or some later time.
  • Intent involves knowledge and purpose to sell the marijuana in the individual’s possession.
  • Sale is defined as the preparation, shipment, transport or delivery of marijuana in the individual’s possession. Shipment, transport and delivery of marijuana involve asportation, or moving the marijuana from one place to another.
  • Reasonable Cause to Believe is determined by what the average person would believe under similar circumstances. The alleged offender must have reason to believe the marijuana in his or her possession is intended for the sale or resale to another person.

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Actual vs. Constructive Possession

The possession of marijuana intended for sale can be either actual or constructive. Actual possession is defined as direct authority and control over the marijuana in question by the offender.

Constructive possession occurs when an individual has the ability to exercise authority and control over the substance, the individual knows the substance is marijuana and the individual knew the marijuana was in their presence. The fact that the substance is close to the alleged offender does not, by itself, signify possession, State v. Mitchell, 190 Ohio App.3d 676, Ohio App. 1 Dist., 2010.

An example of symbolic constructive possession is having a key to a container, vehicle, or area where the marijuana is stored and actual knowledge that the substance in question is marijuana.


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Penalties for Marijuana Possession with Intent to Sell

The penalties associated with possessing marijuana with the intent to sell, or trafficking marijuana, depend on the amount of marijuana in question and/or whether the offense was committed in the vicinity of a school or in the presence of a juvenile.

The penalties for marijuana possession with intent to sell are much harsher than for a misdemeanor marijuana possession charge. Therefore, prosecutors will often seek evidence of intent to sell to charge the alleged offender with a greater offense.

Fifth Degree Felony Possession of Marijuana with Intent to Sell - The Ohio Rev. Code § 2925.03(C)(3)(a) states trafficking in marijuana, or possessing marijuana with the intent to sell, is a felony of the fifth degree. If the trafficking is committed in the vicinity of a school or of a juvenile, the offense is considered to be a felony of the fourth degree, and may result in a mandatory prison term.

Fourth Degree Felony Possession of Marijuana with Intent to Sell - The Ohio Rev. Code § 2925.03(C)(3)(c) states trafficking in marijuana, or possessing marijuana with the intent to sell, is a felony of the fourth degree if the amount is equal to or exceeds two hundred grams, but is less than 1,000 grams. If the amount is question is within that range and was committed in the vicinity of a school or of a juvenile, the offense is considered to be a felony of the third degree and may result in a mandatory prison term.

Third Degree Felony Possession of Marijuana with Intent to Sell - The Ohio Rev. Code § 2925.03(C)(3)(d) states trafficking in marijuana, or possessing marijuana with the intent to sell, is a felony of the third degree if the amount is equal to or exceeds 1,000 grams but is less than 5,000 grams and may result in a prison sentence. If the amount is question is within that range and was committed in the vicinity of a school or of a juvenile, the offense is considered to be a felony of the second degree and will result in a mandatory prison term.

Third Degree Felony Possession of Marijuana with Intent to Sell - The Ohio Rev. Code § 2925.03(C)(3)(e) states trafficking in marijuana, or possessing marijuana with the intent to sell, is a felony of the third degree if the amount is equal to or exceeds 5,000 grams but is less than 20,000 grams and will result in a mandatory prison term. If the amount is question is within that range and was committed in the vicinity of a school or of a juvenile, the offense is considered to be a felony of the second degree and will result in a mandatory prison term.

Second Degree Felony Possession of Marijuana with Intent to Sell - The Ohio Rev. Code § 2925.03(C)(3)(f) states trafficking in marijuana, or possessing marijuana with the intent to sell, is a felony of the second degree if the amount is equal to or exceeds 20,000 grams, and will result in a mandatory maximum prison sentence. If the amount is question is within that range and was committed in the vicinity of a school or of a juvenile, the offense is considered to be a felony of the first degree and will result in a mandatory maximum prison term.

Misdemeanor Possession of marijuana with Intent to Sell - The Ohio Rev. Code § 2925.03(C)(3)(g) states trafficking in marijuana, or possessing marijuana with the intent to sell, is a minor misdemeanor for the first offense, or a misdemeanor of the third degree for a subsequent offense, if the amount is a gift of 20 grams or less. If the amount is question is within that range and was committed in the vicinity of a school or of a juvenile, the offense is considered to be a misdemeanor of the third degree.


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Indirect Consequences of Marijuana Possession with Intent to Sell

Aside from a jail or prison sentence, detrimental indirect consequences can result from a conviction for trafficking marijuana or possessing marijuana with the intent to sell. Therefore, it is imperative to hire a knowledgeable Columbus defense attorney who will help you craft your best defense.

Some collateral consequences that can arise from a conviction of felony marijuana possession with intent to sell are:

  • A criminal record
  • Harm to reputation in the community
  • Inability to apply for certain government assistance
  • Inability to apply for certain student financial aid
  • Harm to military status
  • Inability to apply for and receive certain professional positions
  • Denial of the right to hold public office
  • Denial of the right to vote
  • Jeopardizing of adoption or child custody proceedings

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Marijuana Crimes and the Seizure of Assets

Another serious penalty arising from a marijuana trafficking or possession with intent to sell charge is the seizure of money or other assets. Asset forfeiture involves the government’s confiscation of personal property involved in or facilitating the marijuana crime at issue in order to recover the proceeds of the crime. In the case of marijuana cultivation, the seizure of one’s home can take place.

The asset seizure also is commonly used both in pre-trial and post-indictment cases to cover attorney's fees.


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Options Other Than Jail or Prison Time

A 1996 Ohio bill, also known as the Intervention in Lieu of Conviction statute, prohibits Ohio courts from sentencing fourth and fifth degree felony drug offenders to prison terms. This statute gave rise to the use of drug courts in Ohio. The National Institute of Justice has reported that recidivism rates in jails and prisons have reduced due to the existence of drug courts.

Ohio drug courts offer incentive-based alternatives to jail or prison time and allow the alleged offender to treat a possible dependency under court-ordered supervision. Under the court’s guidance, the alleged offender can explore options other than incarceration, such as probation or rehabilitation programs.

Drug courts function in the same manner as other courts, and actually operate within the common pleas, municipal and juvenile courts. However, drug courts have separate proceedings and different criteria for offender eligibility.

Among the reasons for disqualification from drug courts, prior convictions for violent crimes and/or multiple prior felonies are among the most common factors, along with several others. Consult with your Columbus defense lawyer to determine whether you are eligible for the drug court alternative.


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Possible Defenses To Possession of Marijuana with the Intent to Sell

  • Lack of Intent - Marijuana trafficking is a specific intent offense that involves knowledge, purpose, and a deliberate act in furtherance of the crime’s commission. This means that at the time the offense was allegedly committed, you did not have the required “guilty mind,” or criminal intent, necessary to perpetrate the offense of marijuana trafficking. Therefore, proving lack of intent can lead to a dismissal of the charges against you.
  • Fourth Amendment Violations - A claim that law enforcement either conducted the search for marijuana without a warrant or with a defective warrant will trigger a motion to suppress the evidence. If your attorney is successful in presenting such a motion before the court, the charges of marijuana trafficking either will be reduced or dismissed. The U.S. Constitution’s Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Any evidence seized in violation of the prohibition against unlawful searches and seizures is considered to be “fruit of the poisonous tree.” Wong Sun v. United States371 U.S. 471(1963).
  • Fifth Amendment Violations - The Fifth Amendment to the U.S. Constitution prohibits a defendant’s self-incriminating testimony. Prior to custodial interrogation, Miranda warnings must first be given to the defendant. Custodial interrogation occurs when an individual is questioned by law enforcement and the individual reasonable believes they are not at liberty to leave the custody of law enforcement. Miranda warnings include the defendant’s rights to remain silent, to speak to an attorney, and to have an attorney present during questioning. Violations of any of these rights can lead to a dismissal of the defendant’s marijuana trafficking charges.
  • Entrapment - The entrapment defense enables a defendant to demonstrate that, but for outside inducement, influence, coercion or compulsion, he or she could not form the predisposition or natural tendency to commit the offense. Entrapment requires the defendant to show the original intent for the crime’s commission originated in the mind of the entrapper and not the person falsely accused. The defendant’s burden of proof is by a preponderance of the evidence. This means the evidence has to lean slightly more in the defendant’s favor. The prosecution must still prove its case beyond a reasonable doubt – a much higher, more difficult standard to meet.
  • Law Enforcement/Confidential Informant Misconduct - Aside from the entrapment defense, a defendant may assert a claim of law enforcement and/or confidential informant misconduct. At times, law enforcement may enlist an informant with bias against the defendant or pending criminal charges to speak untruthfully about the defendant. In exchange, the informant can receive a reduction or dismissal of those charges. Self-interest often motivates the informant in these situations. Proven informant bias or inducement to speak falsely could lead to a reduction in the charges against you.

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Claims Not Available As a Defense Under Ohio Law

The following do not qualify as defenses to marijuana possession with intent to sell under Ohio law. This list is not exhaustive and there may be other defenses not available.

  • A state official consented to a transaction involving marijuana;
  • The possession with intent to sell marijuana as a business venture. In such cases, a defendant in the business of marijuana transactions cannot assert that he or she lacked knowledge of the nature of the substance;
  • The compassionate use defense; and/or
  • The necessity defense.

The latter two assertions, compassionate use and necessity are not presently recognized under Ohio law. The Ohio legislature has been reluctant to pass The Ohio Medical Compassion Act, co-sponsored by State Representative Bob Hagan of Youngstown. Some reasons include the availability of prescription medications that achieve the same effect as marijuana and the alleged potential addictive quality of marijuana as a prelude to harder drug use.


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Joslyn Law Firm | Attorney for a Marijuana Selling Arrest in Columbus, OH

Contact the Joslyn Law Firm today for a consultation about your marijuana offense in Columbus, Ohio. Brian Joslyn is a knowledgeable marijuana crimes attorney who will make every effort to help you avoid the most serious penalties and repercussions to your offense. Call (614) 444-1900 for a consultation about your marijuana charges in Franklin County and surrounding counties, including Pickaway County, Madison County, Delaware County, Licking County and Fairfield County in Ohio.