I know I only have to wait about 60 hours before I can charge someone who possesses Mephedrone or Methylone or MDPV, but can Bath Salts be charged as an analogue for offenses occuring before 9/1/11? I talked to the DPS chemist in my case and the substance possessed (3,4-Methylenedioxy-N-methylcathinone) is an analogue of a PG2 substance, methcathinone. However, substance was in a baggie that said "not for human consumption." Has anyone been successful with a case like this? I know that 481.123 says it's an affirmative defense if the substance was "not in any part intended for human consumption" and this defense applies to manufacture, delivery or possession. Can I do anything with this case?
What type of baggie, and how was it marked? (Ziploc with a hand written note). If it is packaged as it would be from an original manufacturer than the defense is most likely going to hold up. If you could show that due to its packaging and the context surrounding the incident that it was intended to be used for illicit activities, and that the marking was purely to attempt to make the activity appear legal, then you could overcome any argument as to the legal defense. This is where your narcotics and street officers can help you.
That being said, plan on a trial if you go this way and make sure everyone is on board. If your guy is a user then probably wont be to long before he graces your desk again.
Or you can wait the next few days out, and spend all that energy on the first case under the new law, and set an example.
The baggies were the original manufacturer's packaging, but they were found in a bag with a syringe and a clear capsule of white powder. The case can be made. I'll post if we do it. Thanks for your help. This guy is on parole, so I wonder if the parole revocation would still fly even if we didn't prosecute.
Apparently, they have t-shirts:
Tony Montana was CUBAN, not Bolivian!
Well, my Bath Salts defendant can say hello to my little friend, an indictment!
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