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


The Ohio Supreme Court took up the case after Kelly Foreman appealed her conviction on felony drug possession charges.

COLUMBUS, Ohio — 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.

Read more from the Ohio Capital Journal

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