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Ohio Supreme Court Holds State Cannot Prove ‘Bulk Amount’ of Fentanyl Under Statute

by Dale Chappell

Because no standard pharmaceutical reference manual specifies a maximum daily dose in the usual dose range for fentanyl, a defendant’s conviction for aggravated possession of a “bulk amount” of the drug could not stand, the Supreme Court of Ohio held January 4, 2018.

Mark Pountney was charged with multiple offenses, including possession of 10 three-day transversal fentanyl patches, and the State sought an enhanced felony level of aggravated possession based on the amount of the drug involved. That is, the State argued that he possessed a “bulk amount” of fentanyl, a second-degree felony given the amount of the drug in his possession.

After a bench trial on the fentanyl charge, Pountney was convicted and sentenced to three years in prison after pleading guilty to the other counts. He appealed.

On appeal, Poultney argued that the State failed to present sufficient evidence that he had possessed at least five times the “bulk amount” of fentanyl under R.C. 2925.01(D)(1)(d), which is a second-degree felony under R.C. 2925.11(C)(1)(c). The court of appeals agreed and reduced his conviction to a fifth-degree felony. The State appealed to the Ohio Supreme Court, which agreed to hear the case.

On appeal to the Supreme Court, the State argued that “because there is no ‘usual dosage range’ of fentanyl, the State may rely upon the usual dose range of morphine, the prototype drug for fentanyl, to establish the bulk amount of fentanyl.” The Court disagreed.

Ohio Revised Code 2925.11(A) prohibits knowingly obtaining, possessing, or using a controlled substance. If the amount in question “equals or exceeds five times the bulk amount but is less than fifty times the bulk amount,” it constitutes a second-degree felony. R.C. 2925.11(C)(1)(c). The Court noted that the General Assembly has defined the “bulk amount” of a Schedule II opiate or opium derivative, like fentanyl, as an “amount equal to or exceeding twenty grams or five times the maximum daily does in the usual dose range specified in a standard pharmaceutical reference manual.” R.C. 2925.01(D)(1)(d).

The State acknowledged that the usual dose range for fentanyl does not appear in any standard pharmaceutical reference manual because “transdermal fentanyl should be individualized” based on multiple factors for each patient.

The Court rejected the State’s argument that it can rely on the usual dose range of morphine, the prototype opiate, to establish the bulk amount of fentanyl under R.C. 2925(D)(1)(d) since the usual dose range is not specified in any standard pharmaceutical reference manual.

According to the Court, the State cannot prove a “bulk amount” of fentanyl patches because standard reference manuals do not specify a maximum daily dose in the usual dose range for fentanyl. The Court conceded that this situation creates a “problem of proof” for the State, which can only be fixed by the General Assembly amending the statute. Since a “bulk amount” cannot be established, Pountney cannot be convicted of a second-degree felony under R.C. 2925.11(C)(1)(c). He can be convicted of only a fifth-degree felony under the statute.

Accordingly, the Ohio Supreme Court affirmed the lower court’s decision to reduce Pountney’s conviction to a fifth-degree felony. See: State v. Pountney, 2018-Ohio-22 (2018). 

 

 

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