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Published: Thursday, 3/4/2004

Justices weigh in on drug sales near schools

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - Imposing more jail time on drug dealers plying their trade near schools could prove more difficult under a 5-2 Ohio Supreme Court ruling issued yesterday.

Simply committing the crime within 1,000 feet of a school is not enough, the court found.

Justice Paul Pfeifer, writing for the majority, drew a distinction between the school vicinity language and another portion of the same law calling for stiffer penalties if the crime was committed within 100 feet or within view of a juvenile, regardless of whether the offender was aware of it.

The school vicinity portion lacks similar “strict liability” language. Absent a clear indication of the General Assembly s intent on the mental state of offenders, prosecutors would have to meet a tougher standard of proving “recklessness,” the court ruled.

“Beyond the psychic danger of seeing drugs being sold, there is a very real physical danger surrounding a drug transaction, even for nonparticipants,” said Justice Pfeifer. “Thus, a child, whether in view or not, could become a part of the collateral damage of a failed transaction. The threat to a child is real and imminent.

“On the other hand, to be in the vicinity of a school, an offender could, by definition, be 1,000 feet away from a school,” he wrote. “A child may not necessarily be nearby, or even in the school. The transaction could occur in the late evening hours, or in summer, or during any other period of the year that the school is closed.”

Justice Pfeifer was joined in the majority by Chief Justice Thomas Moyer, Justices Alice Robie Resnick and Evelyn Stratton, and 4th District Court of Appeals Judge William Harsha III, substituting for then-Justice Deborah Cook. Justices Maureen O Connor and Francis Sweeney dissented.

Chad A. Lozier of Millersburg pleaded no contest in 2001 to charges he sold LSD out of his home to an undercover officer. His home was 745 feet from a county building housing a remedial education program on its third floor.

The prosecution conceded it had no evidence Lozier knew of the unmarked education program, but the common pleas court judge determined that made no difference.

Holmes County Assistant Prosecuting Attorney Jeffrey Mullen said he will not attempt to prove the tougher standard, a move likely to result in a lesser sentence for Lozier.

He said he would pursue “recklessness” in cases in which dealers operate in zones around more obvious schools, but he suggested legislators should consider changing the law to make their intent clear.

Justice Pfeifer suggested another option: “If an offense occurs within 1,000 feet of a school, the offender still can be subject to strict criminal liability if there is a juvenile within view..”

Lozier is currently serving his three-year sentence along with an unrelated drug sentence from Ashland County.

“The role of the Ohio Supreme Court is not to write the law, but to decide what the General Assembly intended when it wrote the law. That s what they did here,” said J. Dean Carro, a University of Akron law professor and Lozier s attorney.



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