Fresno Criminal Defense Attorney Jonathan Rooker takes a look at some drug offenses that have recently been in the news. First, the Designer Drug issue which has led Tulare to pass an ordinance making it an infraction. Secondly, the state of Marijuana Cultivation laws and fines in Fresno County as related to state and national laws and the problems these laws are causing in society.
Designer Drugs have become a hot topic in Federal Court during recent years. However, defining what a designer drug actually is can be somewhat vague. A designer drug is one that is "substantially similar" to the molecule of an banned substance, narcotic, or drug. What is the definition of substantially similar, is a question to be answered by a jury. Many molecules are very similar, but no prosecution would ever take place, because they are in medication, food, or everyday items. Others, which to many scientists appear very different have been found to be substantially similar because the government witnesses say they are, despite glaring differences that anyone should see. Depending on how the measurement is calculated humans and Chimpanzee's share 98.8% DNA or approximately 95% common DNA if the basic building blocks and patterns are taken into account. Therefore, if found "substantially similar" a chimpanzee could be a "Designer Human" by analogy. Even more facilitating is the fact that Humans share approximately 50% of the same DNA with a Banana and 33% similar to a mushroom.
In comparison, imagine a prosecution of an individual for having a substance with a molecule that is 33% similar to the molecule found in a prohibited narcotic. Is that close enough? It would be easy to say 33% similarity between a mushroom and human DNA would not be enough to call a mushroom a human, or even substantially similar to a human. 50% identical DNA with a Banana would be a far cry from substantially similar to a human. Even the Chimpanzee at the most similar measurement being nearly 99% similar to a human at the DNA level is still a far cry from calling a primate a human. However, in the court room with agenda driven prosecutors, judges who commonly used to be prosecutors, and jury's made of individuals who lack the scientific expertise to distinguish prosecution orientated government witnesses from unbiased science based testimony, the lines are blurred.
In local news the Fresno Bee reported that Tulare County has banned Designer Drug sales.
An ordinance banning the sale or possession of synthetic marijuana and similar products goes into effect in Tulare today.The prohibition covers designer drugs known as “bath salts” and “spice” that are smoked, swallowed, inhaled or injected to get high.
Typical brand names of bath salts containing amphetamine-like stimulants includes Bliss, Vanilla Sky and Pixie Dust, while brand names of synthetic marijuana include K2, Potpourri, Serenity and Black Mamba.The Tulare City Council voted unanimously last month to adopt an ordinance after complaints by downtown businesses about teens getting high on such products and loitering, Mayor David Macedo said.
It's unclear how many cities in the state or the San Joaquin Valley have such bans, but Tulare is the first city in Tulare County to adopt an ordinance banning the substances, the city said. The mayor said he spent an hour at a downtown business watching the action on the street, and saw young people ages 15 to 19 who were high from using synthetic substances. Their attitude and behavior “changed markedly,” he said. Some were loud, others lackadaisical and some were slumped over, he said.“This is a bad thing for them,” he said. “We don't want easy access to it for them.”
Police conducted research and saw that youths are being targeted to buy synthetic drugs, which can cause hallucinations, agitation, aggression, psychosis and suicidal or homicidal thoughts, Sgt. Greg Merrill said.
There's a state law against synthetic marijuana, but manufacturers adjust the formula to get around the law, he said. Tulare's ordinance is more specific than state law and includes a longer list of banned substances, City Attorney Martin Koczanowicz said. An ordinance make the ban easier to enforce, he said. A first offense in an infraction and a $100 fine, but repeated incidents could escalate to a misdemeanor with a fine up to $1,000 and up to six months in jail.
Downtown Smoke Shop owner Ali Altarb said he got rid of his spice for sale Tuesday after police paid a visit to tell him about the new ordinance. He said he wasn't worried about losing customers. “Four or five years ago when these first came out, I was busy,” he said. “But for the past four or five months, it has been slow. ”Most customers told him they smoked spice instead of marijuana because they had “good jobs” and wanted to pass a urine sample test, he said. Other said they were on probation for criminal offenses and subject to random testing. Lately, customers have said they don't like smoking spice anymore, he said: “They're going back to marijuana.
Let's analyze this ban and article from a legal and scientific aspect. The first paragraph states that the City has banned the sale of synthetic drugs known as bath salts and spice. It appears the City of Tulare has banned a "name" rather than a class or type of drug. Is the same product in a new package, under a new name still illegal? Also, we should keep in mind California, under then Governor Arnold Schwarzenegger decriminalized possession of under an ounce of Marijuana, making it an infraction.
The next paragraph talks about how the Mayor went to a downtown business where the substances were sold and claims to have seen young people ages 15 to 19 who were high from using synthetic substances. However, nothing about a chemical test, to show that the substance was ingested, or that no other substance was present in their body, which may affect their behavior was utilized in making this determination. That is not science, that is a target. He said some where loud, lackadaisical, or slumped over. That sounds a lot like teenagers hanging out as well. The same observations could be used to make a mandatory number of hours of sleep for teenagers a law as well. Teens appear lackadaisical, some slump over, and others get loud and misbehave when sleep deprived. There is no science supporting the conclusion of his observation.
The article also states that "Police conducted research" and saw teens are being targeted and these substances cause suicidal thoughts, psychosis, aggression, agitation, and hallucinations. However, the methods and results are not published. I question who at the police department has the qualification to conduct this research? Did they provide the substances to people in a double blind scientific method based study and come to this conclusion. I highly doubt it. It's appears to be another Government agenda based opinion, not science.
Remembering the decriminalization of Marijuana, and noting the Reefer Madness government propaganda agenda based films from a half century ago, this ordinance makes a first offense punishable by an infraction. The same de-criminalized category as Marijuana.
The article also talks of a store owner who says his business for the Designer drugs listed has dropped significantly, as most of the customers have gone back to marijuana. This would imply the substances were not very addictive, if at all, because it seems like a fad that came and went long before the City of Tulare took notice.
Also, how does the ban, as worded, detail the identification of the substance as illegal or legal?
In short, we must wonder if the 100 find for a first offense does anything other than gain votes and political favor for those who want to be re-elected, or if it is just another arbitrary and capricious law added to the books in the land of free.
In related News the Fresno Bee also reported that Fresno Order on Pot Fines is taking an interesting turn.
Fresno County wants to dismiss $43,000 in fines related to cultivating medical marijuana in Fresno County. However, the woman, through her attorney indicated she does not want the fines dismissed absent a decision. The reason being is that Fresno County routinely fines many people for cultivation of medical marijuana, and the model used by Fresno County has been replicated state wide in many counties. Absent a ruling from the courts, a single dismissal will lead to many more cases having to be litigated. A ruling, could begin the unraveling of a potentially illegal course of action that has cost many people great sums of money fighting the government's intrusion.
The end result in this case will be that no fines are going to be paid. However, there are rules that need to be followed and the contention is Fresno County did not give the individual a warning to remove her plants prior to taking this drastic course of action. Under a Fresno County medical marijuana cultivation ordinance that was enforced starting in February, she was ordered to remove the plants. She began doing so that day. It was argued that the guidelines themselves require 15-day notice. She was not given a fair opportunity to comply
The County Counsel argued that the county is not required to follow a 15-day grace period because medical marijuana cultivation is considered a health and safety code violation. Under the ordinance the county may also charge a 10% interest fee for unpaid fines.
In a court hearing on Wednesday in Fresno County Superior Court, Judge Dale Ikeda said it appears the defense had won the case. The defense sought an order, as to keep Fresno County from revoking the resolution. A resolution is not a law or an order, it is not enforceable by anyone, so an order would be binding and make for a final resolution of the case. There are also other cases pending, and an order may make for a precedent that helps resolve cases in the future. If Fresno County can dismiss any case when it appears they are going to lose, then continue to fine people who are unable to fight their cases, that doesn't appear to be substantial justice, instead it is just discrimination against those who are financially unable to defend themselves against the government.
However, the Fresno City Attorney argues that withdrawn assessments of fines or fees cannot be revoked. He even offered to put the County's response in the form of a legal motion. The City also claims this case is isolated and will not affect other cases.
That would make a person wonder why they fought for the assessments of fines or fees, then when they were losing, dropped their position, and do not want a final ruling. Fresno County has won two other medical marijuana cases stemming from the ordinance.
This brings us to million dollar question. As a society, a nation, a state, its individual counties, towns, and municipality's, what are we doing? We legalize medical marijuana in California. We all know that at the Federal Level Marijuana is illegal. Under the Supremacy Clause of the Constitution the State law is illegal. Then we have County Ordinances the may go against the State Medical Marijuana laws. During this process it appears that confusion reigns, and Marijuana crimes, including many high profile murders, home invasion robberies, and burglary / theft related crimes. Not to mention the number of people who get their Medical Marijuana cards, then grow a liberal number of plants, all too commonly 99 of them, and sell the excess Marijuana for a profit.
This is not what the Medical Marijuana laws were enacted to do. The crime, availability, and insanity of this approach is counterproductive for all parties. Now, more states are legalizing recreational Marijuana. Despite being illegal Federally, the laws pass, and new avenues to garner an illegal drug are opened. I believe the end result will be a reclassification of Marijuana on a Federal Level, making it legal for recreational use. But the methods being used are illegal. Marijuana is still illegal at every location in the United States. It is also readily available to all. Any government of the people, for the people, should listen to the people. The Federal Authorities should reclassify Marijuana. Put an end to century old ideas and misconceptions. Stop the Reefer Madness propaganda of yester-years ignorance. That said, it is still illegal, and a crime, that can be prosecuted on a Federal Level. Remember, City, County, and State Police forces may enforce Federal Laws.
There is an organization called SWGDRUG, it stands for the Scientific Working Group for Drug Enforcement. Once of their documents has a list recommendations regarding Analogues and Structural Class Determinations. In part, there are some of the recommendations below.
1.2 Jurisdictional requirements for such determinations may include structural or pharmacological (real or purported) similarity to known controlled substances or structural class definitions.
2.2 Classification as a controlled substance analogue generally involves the evaluation of the similarity of structure or pharmacological properties of a chemical compound to a known controlled substance.
2.5 The evaluation of similarities between chemical compounds should be documented. This should include a discussion of how the compounds are similar and how they are different.
2.5.1 Evaluations of similarity is a subjective matter and opinions may differ.
2.5.2 Structural comparisons in a forensic laboratory are likely to be limited to the structural class and functional group, ring or chain substitutions. As examples, isomers, homolugues, salt forms, esters and ethers may be consider. The scope of comparison conducted should be made clear in the report.
2.6 Structural similarity between two chemical compounds is not enough to infer similar pharmacological activity.
2.7 Likewise a lack of structural similarity is not an adequate basis to infer a lack of analogous pharmacological activity.
2.8 If pharmacological activity is a requirement of particular legislation, the drug analyst should limit his inference and consideration to the citation of peer-reviewed literature, or relevant sworn statements in legal proceedings in absence of specific training and experience in pharmacology (or related fields).
As you can see, especially with Analogue drugs the process is very complicated. If you are arrested for such crimes, call an Experienced Criminal Defense and Educated Drug Defense Attorney.