The Drug Enforcement Administration announced on Sept. 7 that it would use its emergency authority to ban three chemical ingredients to protect the public from "imminent hazard." That ban takes effect the first week of October.
Users smoke, ingest or inject the drug to create a high that has been compared to cocaine or methamphetamine. Law enforcement and doctors say the drug can also cause hallucinations similar to drugs such as LSD and PCP, even triggering acts of violence...
The DEA's ban applies to three of the more commonly used compounds: mephedrone, methylone and methylenedioxypyrovalerone, also called MDPV.
The fact the DEA has banned the use and possession of bath salts means that the banned substances are not illegal under state law. Once the ban takes place, they will only be illegal under federal law. It also seems that the Arizona state legislature has plans to ban the possession, use, or distribution of these same substances (see "Epidemic reveals need to outlaw dangerous bath salts" by Senate President Russell Pearce and Glendale Republican Sen. Linda Gray, who is the chair of the Senate Public Safety & Human Services Committee).
If the Arizona legislature does not ban these compounds while it is illegal under federal law, would someone with these federally banned substances in their system be guilty of an illegal drug DUI in Arizona? The answer to that question is not clear as ARS 28-1381(A)(3) defines an illegal drug by reference to ARS 13-3401, and that statute does not specifically list these compounds nor does it have a blanket provision that compounds banned under federal law are automatically an illegal drug DUI.
This is a question that I am asked all the time, and most of the people who ask me the question assume that I will answer the question by saying "yes, drugs should be legal." That assumption would not be correct. While I think current drug laws are too strict, I think most criminal laws are too strict and there is nothing in particular about drugs laws that make them unusually severe or unnecessary. Most of the arguments I see that favor legalizing drug would be better dealt with by reforming criminal sentencing overall.
The simple fact is that if use of narcotic drugs were legal, drugs would be much cheaper than they are now and more people would abuse them. That is just because of the increased availability and diminished social consequences as a result of legalization. That is not good. As someone who has dealt with a lot of people who have used and abused drugs, I find nothing redeeming or beneficial about drug use. And that includes marijuana use.
And while many people who want drug legalization point to the fact alcohol is a drug and is legal, to me that argument is just the more reason illegal drugs ought to remain illegal. If a house is burning down, that is not a good reason to throw fire on the flame. For examples of the usual arguments of legalizing all drugs, see "Legalize drugs — all of them" by Norm Stamper, the former chief of Police in Seattle:
I favor legalization, and not just of pot but of all drugs, including heroin, cocaine, meth, psychotropics, mushrooms and LSD...I've never understood why adults shouldn't enjoy the same right to use verboten drugs as they have to suck on a Marlboro or knock back a scotch and water.
Having said all that, however, there is one good reason legalizing the sale and purchase of drugs should be legal: it will greatly reduce violent crime. Ironically, most drugs laws punish drug dealers much more severely than drugs users, but that distinction may be outdated and unhelpful. That is because most of the violence from drugs is a direct result of the fact that drug dealers do not have a legal mechanism to resolve grievances other than violence. If you are a drug dealer and someone breaks a deal with you, you can't sue them. So most drug dealers resort to violence. But there is nothing inherently violent about the commerce of drugs other than the fact that the commerce of drugs is illegal.
Maybe a way we could reduce violence is by making the sale and purchase of drugs legal, and thus, drug dealers would not have to resort to violence and they would have a legal alternative to dispute resolution. But the actual possession and use of drugs would stay illegal. That way, while violence would decrease greatly and drugs would probably be much cheaper, the social and legal hindrance to their use would still exist.
In a surprising development, the jury in the Michael Jaskcht Carefree motorcycle case was deadlocked on all the felony counts against Mr. Jasckcht, and the judge declared a mistrial. I just looked at the Maricopa County Superior Court website, and the counts included multiple allegations of manslaughter, endangerment, and aggravated assault.
The manslaughter counts apply to the motorcycle riders who will killed, the aggravated assault counts to the motorcycle riders who were injured, and the endangerment counts apply to the motorcycle riders who were not hurt, but were in "firing line" could very well have been hurt.
Clyde Nachand, 67; Stephen Punch, 52; and Daniel Butler, 35, died at the scene. Dayle Veronica Downs-Totonchi, 47, died a day later.
When I was a public defender in Pima County, I defended and tried a case almost exactly like this one. And that is why I am surprised that the Maricopa County Attorney did not charge Mr. Jaskcht for driving under the influence of an illegal drug or metabolite. If Mr. Jasckcht's license was not suspended or he had no previous DUIs, then there would be no basis for charging him with a felony or aggravated DUI, but even for a misdemeanor DUI conviction a defendant can get up to 6 months in custody.
The main point of a DUI illegal drug charge is that unlike alcohol, to be convicted of the DUI drug charge, a driver must only have the illegal drug in his system and it does not matter if the illegal drug or metabolite actually affected his ability to drive. That is, even an inactive metabolite of an illegal drug- such as carboxy THC, which can stay in a person's system 30 days after smoking marijuana- is enough for an illegal drug DUI.
According to news stories, Mr. Jaskcht passed all field sobriety tests and the only reason the police found out about the alleged illegal drug use is because he volunteered for it. Police routinely ask drivers for chemical tests- usually urine- in fatality cases even if they have no reason to suspect drugs or alcohol, and the driver has the absolute right to refuse such requests. It may be the case, because the DUI most likely would have been a misdemeanor, that it was handling in Maricopa County Justice Court or Carefree City Court separately from the felony counts.
My belief is that the jury did not convict Mr. Jaskcht because there were no signs or symptoms of impairment. Thus, even if a driver has an illegal drug metabolite in your system and he is guilty of a illegal drug DUI, if the driver is not impaired then he cannot be guilty of manslaughter, endangerment, or manslaughter.
In the parlance of legal procedure, the defense did something very smart: they presented their own alternative version of events, supported by their own evidence. That evidence was Mr. Jaskcht's testimony. Under our law, the defense is not obligated to produce any evidence or offer an alternative explanation of events, and is free simply to rebut the prosecution case. But while the defense does not have to produce evidence or an alternative explanation, when it does so, it gains a powerful advantage. That is because while the prosecution must prove its case beyond a reasonable doubt, if the defense evidence is sufficient for the defense's alternative explanation to be "reasonable", that means reasonable doubt and not guilty. That point is spelled out clearly in standard criminal jury instructions, the famous Arizona Portillo instruction on reasonable doubt.
That means if the jury believes the defense evidence and explanation is reasonable- not even likely, probable, etc..- just reasonable, that means not guilty. Here it seems the 9 out of the 12 jurors believed Mr. Jakscht's testimony was reasonable.
Because the jury deadlocked on all the counts, Mr. Jakscht is now legal purgatory, and the county has the right to retry him on all the counts. Double jeopardy does not apply to jury deadlocks and mistrials. My experience has also been that the conviction rate is much, much higher on retrials than original trials because if Mr. Jakscht, for example, were to testify in a second case, the prosecution could use his testimony from the first case to challenge him.
If Maricopa County decides to re-prosecute Mr. Jakscht, they will 60 days from the end of the the last trial do so. One thing the prosecution may need to do is work very hard during jury selection to make sure none of the potential jurors are biased against motorcycle riding victims. I don't know how careful the prosecution was in the first trial making sure none of the jurors disliked motorcycle riders (see "Should Arizonans Hate Motorcycles and Motorcycle Riders?"). I can't help but think that if this case was a car accident instead of a motorcycle accident, the result may have been different. Certainly, as someone who rides a motorcycle myself and has represented motorcycle riders in accident injury cases, I am aware that many people- especially insurance companies- consider motorcycle accidents, even when the motorcycle rider is not at all at fault, the "cost of doing business" and that motorcycle riders have essentially assumed the risk of getting hurt.
One of the biggest punitive distinctions in criminal law in Arizona is the difference between personal possession of drugs and possession for sale. And like many other areas of the law, while the consequences between the two charges are very, very different, the facts distinguishing between the two are not.
Why is the difference between personal possession of drugs and possession for sale so important? The main reason is that if the state convicts you of possession for sale, the state thinks you are a drug dealer. On the other hand, if the state convicts you of personal possession the state thinks you are probably just a user. Under proposition 200 and 302, the Arizona referendum laws, in most circumstances, if you are convicted of a first or second drug possession for personal use, you will not go to prison or even jail. However, proposition 200 and 302 do not apply to possession for sale. Thus, even if it is your first offense, if the state convicts you of possession for sale, you can go to prison.
So while the punitive consequences are clear, the facts that distinguish between possession for sale and personal possession are not. That is even more so in cases where a drug user buys drugs by the "Costco method": in bulk to save money. That is because if the police catch someone with a large amount of drugs, they will assume that large amount is too much for personal use. Other facts that the police rely on include whether or not the person had a scale, ledger, and things like plastic bags with drugs individually wrapped for quick distribution. The main method of proving possession for sale is by the use of expert witnesses. In Arizona, that usually means the case detective testifying in his or her expert opinion the drugs were for sale, not personal possession. It is up to the defense at that point to discredit the case detective or have their own expert rebut the case detective.
Just recently Arizona banned the sale of synthetic marijuana, or as it is commonly know, spice, in Arizona. The reason spice was banned was that it was being used as an drug to get high. After the sale of spice was falling, it is picking back up again. That is because many of the retail sellers of spice have changed the ingredients, which makes it legal, but the high remains.
Sold as herbal incense in most head shops, people who smoke Spice say it gives them a high similar to marijuana.
"I think sometimes people think making something illegal makes it extinct but it doesn't," said Shelly Mowery, Deputy Director for Drug Free AZ.
As with other laws, the first try at making something illegal does not always succeed.
"You always see a circumvention of the law." Mowrey says manufacturers have changed some of the ingredients in Spice. Because of those changes, stores can legally sell Spice once again.
"It's just as dangerous as before and can have the same impact on your child," Mowery said.
Because there appears to be a loophole in Arizona's synthetic marijuana law:
The author of the original bill, Rep. Amanda Reeve, tells ABC15 she'll introduce legislation to ban the new Spice versions. That, however, won't happen until next year when the legislature convenes for the 2012 session.
One thing to note is that under federal Drug Enforcement Agency regulations spice became illegal nationwide on March 1 when the federal Drug Enforcement Agency used its emergency powers to list five components in synthetic marijuana as Schedule I drugs. Thus, while there is no federal statute making spice illegal per se, the DEA has effectively done that by itself through its rule making procedure.
The U.S. Navy says it's concerned about widespread and increasing use of a synthetic drug known as Spice. A release written by two psychiatry residents at the San Diego Naval Medical Center said the facility treated 15 service members between August and December 2010 for Spice-related problems, The San Diego Union-Tribune reported Tuesday. Problems associated with Spice include hallucinations, paranoia and debilitating confusion, often lasting for days, the doctors said.
The Navy is so concerned about synthetic marijuana that they have even discharged sailors on active duty:
In July 2009, 15 Sailors aboard the aircraft carrier George Washington were discharged for Spice use, leading to a Navy-wide ban on the drug in March 2010. Seven students using Spice were discharged from the U.S. Naval Academy in January. The drug, sometimes referred to as fake marijuana, was legally available in head shops and other establishments until March 1, when the U.S. Drug Enforcement Administration named it a controlled substance in an emergency action also affecting civilians.
I had a recent post on how Arizona has banned the sale of synthetic marijuana, and why it's a problem for civilians. It now seems that there is a national trend, and that both federal and state agencies, as well as the military, will be prosecuting synthetic marijuana as stringently as real marijuana, if not even more stringently.
I am about to describe something that happens all the time Arizona DUI cases. Imagine the following: a police officer sees a driver late at night make a right turn, and instead of turning into the curb lane, the driver turns in the median lane. The officer pulls over the driver for not making a turn "into the first available lane." When he comes up to the driver, he can smell alcohol on him; he asks the driver to do some field sobriety tests and a portable breath test. The driver tells the officer "I had a few at the bar down the street". The officer then arrests the driver and the blood alcohol result is well above the legal limit. During the search incident to arrest, the officer finds a gram of methamphetamine on the driver, and he orders a drug screen as well of the driver's blood.
Now consider the fact possession of methamphetamine is a class 4 felony, while a first time DUI is almost always, with a couple of exceptions, a misdemeanor. With that in mind, which of the two crimes, drug possession of crystal meth or a first time misdemeanor DUI, do you think brings more jail time? The answer is the DUI. For a first time DUI, the time in custody is at least 24 hours and can be up to 180 days in jail. The state required minimum for a first time conviction for methamphetamine is no time in custody, and under most circumstances, it is illegal to be sentenced to prison for a first or second conviction.
Considering the fact one always has the right to a jury trial for felonies and the penalty for a DUI is greater than some felonies, one would assume that you would get a jury trial for a misdemeanor DUI as well. That has always been the law, but that might just change. According to Paul Davenport of the AP, Senate Bill SB 1200 would:
A bill approved by the Arizona Legislature would end misdemeanor DUI defendants' automatic right to a jury trial for a first offense... The House formally approved the bill Monday, and the Senate followed suit Tuesday afternoon. The Legislature adjourned its session early Wednesday morning, and the bill is now among 168 measures awaiting action by Gov. Jan Brewer by May 2.
According to Lester Pearce, a Maricopa County justice of the peace for north Mesa:
Eliminating a blanket right to jury trials for first-offense misdemeanor DUI cases will save millions of dollars statewide in court costs and other expenses, primarily because trials will be shorter and because direct jury expenses will be eliminated in many cases.
Get a card, and you can buy, possess, and use up to 2.5 ounces of marijuana every two weeks — or grow up to 12 plants. Follow the law, and cops can't arrest you, landlords can't discriminate against you, and employers can't penalize you (unless you're high on the job).
The card that Mrs. D'Andrea is referring to is the card that "the Arizona Department of Health Services will begin accepting applications for medical marijuana patient and caregiver cards. The ADHS will review and approve or deny each application within 10 business days."
Of course, this law changes things quite dramatically from the previous state of affairs in Arizona. Previously, regardless of what your doctor may have thought of your medical condition, possessing marijuana, even for personal use, was a felony. Of course, even now, if you do not follow proper procedure, you could still be charged with a felony even if you have valid medical reason for possessing marijuana.
I can't help but think this is good news. The stories of jails overcrowding is well known, but even more to the point, I would hate the idea of young person or sick person having a drug possession felony on their record for the rest of their life because they had some marijuana on them. I don't think drugs should be legal, but we should not treat all the drugs the same. Marijuana is no where near remotely as destructive or dangerous as methamphetamine, yet before the new medical marijuana law, Arizona essentially treated them the same.
Richard Gurule, owner of “Just Ta Dream” smoke shop, 4609 S. 12th Ave., is facing two counts of dangerous drug sales after police say sold synthetic marijuana, also known as “spice” or “K2,” according to a Tucson Police Department news release. Police say they found packets of the drug while serving a search warrant at the smoke shop following a tip the product was being sold there.
Gov. Jan Brewer signed legislation in February banning synthetic marijuana, a blend of herbs chemically treated to give users a high similar to marijuana.
