People v. State

fairly undermining public confidence in the administration of justice
Subscribe

Save the children: Legalize Pot (Updated and Corrected)

May 27, 2010 By: John Kindley Category: Uncategorized

UPDATE AND CORRECTION: After further investigation, it appears, counter-intuitively, that marijuana and THC are actually listed as Schedule I controlled substances under Indiana Code sections 35-48-2-4(d)(22) and 35-48-2-4(d)(31), even though dealing in a Schedule I controlled substance is ordinarily a Class B felony (i.e. 6 to 20 years) while dealing in marijuana is ordinarily only a Class A misdemeanor (i.e. 0 to 1 year). This would certainly seem to add teeth to the St. Joseph County Prosecutor’s argument that Mr. Smiley et al. qualify as controlled substance analogs and that selling them could be prosecuted as a Class B or Class A felony, even though it appears that the active ingredient in Mr. Smiley et al. is indeed (or is supposed to be) a synthetic analog of THC (i.e. marijuana) rather than of some other Schedule I controlled substance, the possession or sale of which is generally treated far more harshly by the law than the possession or sale of marijuana. [Again, nothing in this post or on this blog should be construed as legal advice.]

——————————————————————————————————————–

I first heard of “Mr. Smiley” a few weeks ago while interviewing at the jail a witness in a criminal case I was defending. Mr. Smiley, I was told, is a synthetic herb that closely mimics the effects of marijuana when smoked, is completely legal, and doesn’t show up in drug tests. That sounded too good to be true, but since then the local news has been awash with confirmation of what this inmate had told me. Indeed, Mr. Smiley, along with other brands such as K2, Spice, and Mr. Dutchy, is being sold as a herbal “incense” at a number of local convenience stores.

But according to this local news story, at a press conference yesterday St. Joseph County Prosecutor Michael Dvorak and his son State Representative Ryan Dvorak had this to say about the assumption that Mr. Smiley et al. are legal:

“We do not need to wait for a legislative fix in Indianapolis and I don’t think our local legislative bodies need to pass any new ordinances. Indiana law already provides for us to have the ability to prosecute and attack this problem as a concerted law enforcement effort,” [Michael] Dvorak said.

Dvorak cites Indiana’s Controlled Substance Analog Act, passed by state lawmakers in 2003. Under the act, any substance that mimics the effects of an already illegal drug–like marijuana–can also be classified as illegal.

Click here to read the text of Indiana’s Controlled Substance Act.

“The assumption has always been made that this is a legal substance that’s legal to sell. And, simply put, we don’t know that that’s true,” said State Representative Ryan Dvorak (D-South Bend).

“Detailed testing has not been performed on this substance in Indiana, but when it’s been performed on similar products by federal authorities and authorities in other jurisdictions, it’s often been found to contain chemicals that are listed as schedule one controlled substances, meaning they’re definitely illegal,” Dvorak continued.

If that’s also the case here in Indiana, Prosecutor Dvorak says criminal cases would be cut and dry. But, even if it’s not, the chemicals in K2 may still be illegal.

Testing is now underway at the Indiana State Police lab on samples of K2 taken from gas stations and convenience stores in St. Joseph County.

“If [those] tests come back that it is a schedule one controlled substance or schedule two controlled substance or an analog of those controlled substances, and we can prove that it has hallucinogenic effects, we’re going to be able to prosecute,” Dvorak said.

Anyone convicted under the Controlled Substance Analog Act would face the same class A or Class B felony possession or distribution charges as they would if they’d been caught with the actual drug.

Indiana Code section 35-48-1-9.3(a) defines a “controlled substance analog” as a substance

(1) the chemical structure of which is substantially similar to that of a controlled substance included in schedule I or II and that has; or
(2) that a person represents or intends to have;
a narcotic, stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than the narcotic, stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in schedule I or II.

(Emphasis added.)

Furthermore, Indiana Code sections 35-48-1-9.3(b)(4) and 35-48-4-0.5 appear to exclude from the above definition substances not “intended for human consumption.”

In other words, to prosecute and convict someone for selling or possessing Mr. Smiley the State would seem to have to prove beyond a reasonable doubt that Mr. Smiley’s chemical structure is “substantially similar” to, not marijuana [This is probably wrong: See Update above], but a controlled substance included in Schedule I or II and that it is intended for human consumption and that it has an effect on the central nervous system substantially similar to or greater than that of, not marijuana [This is probably wrong: See Update above], but a controlled substance included in Schedule I or II. [Now is a very good time for me to emphasize that nothing on this blog constitutes legal advice.] The entrepreneurial maker and seller of Mr. Dutchy argues: “It’s incense. . . . Everything in it is legal. It’s not meant to be smoked. . . . [K]ids can go buy spray paint and huff that, but they’re not banning spray paint.”

A lot would indeed appear to depend on the results of the tests Prosecutor Dvorak says are being conducted on samples of Mr. Smiley et al. by the Indiana State Police lab. A letter sent by the Prosecutor to local retailers urging them to “voluntarily” suspend all sales of these products cites this Indiana Court of Appeals case, which reversed the defendant’s conviction for possession of a controlled substance analog on the grounds that, while the State had established at trial that the chemical structure of the substance possessed by the defendant was “substantially similar” to that of a controlled substance included in Schedule I, it had failed to meet its burden of proof with respect to the statutory element concerning the effects on the central nervous system of the alleged analog substance.

All of the above, written from the perspective of a criminal defense attorney, is not to say that people’s concerns about Mr. Smiley et al. are not legitimate:

“We were dispatched to a call on Friday evening at approximately 8pm involving a 911 hangup. Upon responding to that call, our officers found three teenage boys inside a home all alone. One of the teenage boys was lethargic, couldn’t respond, and couldn’t answer questions given to him by the officers,” said St. Joseph County Police Sergeant William Redman.

“At the time the officers arrived, his heart rate was 180 beats per minute. For a 15 year old, the standard heart rate should be about 60-80 beats per minute. It was later found out that he had admittedly smoked K2 prior to our arrival,” Redman continued.

Mr. Smiley is a herb adulterated with man-made synthetic chemical compounds to achieve its desired effects. Marijuana, by contrast, is not. It grows in the ground. No one has ever died of a marijuana overdose.

If our community seriously wants to save us from the scourge of Mr. Smiley, it might want to rethink the wisdom of outlawing a plant that never really hurt anybody.

1 Comments to “Save the children: Legalize Pot (Updated and Corrected)”


  1. It’s about time they give us our plant back. Hopefully, California votes in favor this November and other states soon follow…

    1


Leave a Reply

*

  • "[T]here is just nothing wrong with telling the American people the truth." - Allen v. United States

  • Lysander Spooner

    Henry George

    Harriet Tubman

    Sitting Bull

    Angelus Silesius

    Smedley Butler

    Rose Wilder Lane

    Albert Jay Nock

    Dora Marsden

    Leo Tolstoy

    Henry David Thoreau

    John Brown

    Karl Hess

    Levi Coffin

    Max Stirner

    Dorothy Day

    Ernst Jünger

    Thomas Paine