Answer: In the State of Ohio, no.
If you test positive for marijuana (fail a drug test) – but do not actually have any marijuana or paraphernalia in your possession – you cannot in Ohio be charged with marijuana possession. Once you smoke or consume a drug (such as marijuana), you are no longer in possession of it nor do you have control over it.
Black’s Law Dictionary (6 Ed.1991) 806, defines “possess” as follows:
“To occupy in person; to have in one’s actual and physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to.
“Term `possess,’ under narcotic drug laws, means actual control, care and management of the drug. Defendant `possesses’ controlled substance when defendant knows of substance’s presence, substance is immediately accessible, and defendant exercises `dominion or control’ over substance.“
Similarly, R.C. 2925.01(K), which applies to drug offenses, defines “possess” or “possession” as “having control over a thing or substance * * *.”
Thus, the mere presence of alcohol or drugs in someone’s system, standing alone, is not enough to establish possession of that drug or alcohol. See Logan v. Cox, 89 Ohio App.3d 349 (Ohio Ct. App. 1993).
The only way, then, to be charged with possession of marijuana is if the marijuana is actually physically within your possession or control. Failing a drug test does not make you guilty of “possession” under Ohio law.
