As authorities crack down on sale of synthetic drugs, courts may test new laws

Sunday, July 15, 2012 at 10:45pm
By Pierce Greenberg

A mixture of high-profile stories, increased emergency room visits and reports of startling psychotic effects have forced synthetic drugs into the public lexicon over the past year.

And the increased attention has led officials to crack down on “designer drugs” that mimic the effects of marijuana and other illegal substances.

The General Assembly has passed laws aimed at curbing synthetic drug usage with both specificity and generality. Older laws forbid certain chemical compositions, while recently passed legislation deems all “imitation controlled substances” illegal.

Metro police padlocked 11 convenience stores under a new state law last week that allows local jurisdictions to declare synthetic drug-selling stores a public nuisance. Most owners of the stores entered agreements with the district attorney’s office to stop selling the drugs as long as authorities lifted the padlock.

In all, 10 people were arrested as a direct result of the padlocking. However, only one charge was related to selling imitation controlled substances.

And though the new laws surrounding synthetic drugs haven’t been challenged in court yet, not everyone is convinced they are bulletproof.

 

 

Nashville criminal defense attorney Jim Todd knows a thing or two about litigation regarding synthetic drugs. He’s represented roughly 30 store owners facing synthetic drug-related charges.

And Todd has paid close attention as state law has been tweaked to keep up with synthetic manufacturers.

Originally, the state’s ban on synthetic drugs listed specific chemical compositions that were illegal. Manufacturers responded by creating slight variations of the chemicals. At the time, Todd filed multiple appeals on behalf of store owners.

He contends that police seized money and property without hard proof as to whether the allegedly illegal substances matched up exactly with the chemicals outlined by the state. 

“Prior to this new law ... the legislature was always one step behind, because the manufacturers were changing the chemical makeup,” Todd said.

But HB 2286, which Gov. Bill Haslam signed in May, takes a broader approach.

“It is an offense to knowingly manufacture, deliver, sell, or possess with the intent to sell, deliver or manufacture an imitation controlled substance,” the law reads.

“Imitation controlled substances” is defined as any substance that performs as a stimulant or depressant of the central nervous system and is not approved by the Food and Drug Administration.

Todd believes challenges to the new law won’t necessarily hinge on the chemical makeup of the drug, but rather the “knowingly” aspect — especially as it pertains to criminal charges against store owners and clerks. 

“The problem that these store owners have, or that the law creates, is this whole ‘knowing,’ because that’s what they have to prove. They have to prove that the store owner knowingly sold these products,” Todd said.

Assistant District Attorney General Robert Homlar said most of the store owners “were fully aware of the illegal status of these products and did not display them as they did other products.”

But only one clerk was charged for the sale of synthetic drugs related to the undercover operations that led to the padlocking orders. District Attorney General Torry Johnson said the padlocking orders were designed to make a very public point.

“[Our] action should send the clear message that law enforcement in Nashville has zero tolerance for the distribution of synthetic drugs and will take strong action ... to prevent their distribution in our neighborhoods,” Johnson said in a statement.

But Todd questioned whether law enforcement would be able to stay ahead of the curve.

“I don’t know if you’re going to be able to stop people from coming up with new ways to get high. Whether it be glue, paint, gas, meth,” Todd said. “The legislature and law enforcement are going to react to stop it. To stop it, frankly, you need to go to the people who are supplying these stores and get them.”

That’s what law enforcement says it’s going to do. U.S. Attorney Jerry Martin said his office has a commitment to nab the distributors. Last week, President Barack Obama signed a law banning synthetic drug trade in interstate commerce.

But as the laws continue to be flexed for the first few times, Todd foresees challenges. “It’s yet to be seen whether or not this new statute will survive constitutional vagueness challenges, which I’m sure will be levied against it,” Todd said.

Homlar said the DA’s office is ready for any challenges and that the law serves the public well.

“This statute makes the sale of dangerous narcotics illegal,” Homlar said. “And equally important, it does so in such a manner that the people who might consider selling them know how to follow it.”

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