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Can you charge him with possession for the drugs in his blood stream?
Suppose an addict is also a diabetic. Does a drop withdrawn to test blood-sugar levels qualify as a controlled substance adulterated by blood? Will you prosecute him for possession or maybe just charge him with paraphernalia for the residue on the testing device?
Suppose another addict is on her menses. Will you charge her for the weight of the discharged blood? How about the weight of bloody water scooped out of her toilet?
Of course you wouldn't do these things! Even though "intent" has been removed from the statute, it still figures into one's perceptions of justice.
I speculate that if the tube of blood mentioned by Mr. Stride had been found in the trash can then it probably wouldn't have been charged... and that the nasty "intent" of saving it for re-injection cinched the indictment.
Below is a finding in the 2nd Court of Appeals I received last week on a 60 years sentence. We had the same issue about whether or not we had "finished" product or in the manufacturing process.
I had asked for a change in the statute 4 years ago to eliminate the step process of determining manufacturing by weight and simply make all manufacturing a 2nd degree felony. If you prove at punishment it was more than 200 grams, then the punishmnet would step up based on the amount. This was rejected and now we have 481.124. I think any manufacturing should be at least a 2nd degree.
I tried a case a few months ago where the contents of a pyrex bowl was dumped into a washing machine (with water inside) as the police approached. They scooped out what they could and the chemist testified he could test the different contents and determine what was illegal and what was the water. (We had other meth in other places that added to the aggregate weight.) She was convicted of manufacturing over 400 grams and was given 47 years.
Don't confuse "adultterant and dilutant" with "any mixture". The definition says "including" but I don't think it is exclusive. Any mixture to me is at any stage that contains Meth (or other CS). We must be careful not to indict the swimming pool with one gram contained. This could result in case law we don't want. When they dump the process in the washing machine though, every effort should be made to charge the appropriate amount.
2nd Court of Appeals (not published)
"Here, the trial court properly instructed the jury on the meaning of the term �controlled substance� and did not �expand the indictment,� as Appellant now claims on appeal. See Tex. Health & Safety Code Ann. � 481.002(5) (Vernon Supp. 2004) (stating that the term �controlled substance� includes �the aggregate weight of any mixture, solution, or other substance containing a controlled substance�); Melton v. State, 120 S.W.3d 339, 343 (Tex. Crim. App. 2003). Because we conclude that the trial court did not err in instructing the jury on the statutory definition of the term �controlled substance,� we overrule Appellant�s fourth issue."
I would understand a 'bloodshot' to be an attempt to stab the needle into your 'mainline', missing the vein, then saving it for later when you can try again to find an appropriate vein. See, when you stab a needle into your arm and dig around, residual blood creeps into the chamber with the fluids you intended to squirt into your blood stream. After unsuccessfully stabbing yourself a few times, all good addicts will tell you to set the needle aside, tie off your arm and give the vein time to surface.
Coming back to your goodies later and finding them pinkish sounds rather disgusting unless you give it a clever name, like 'bloodshot'.
And yeah, if we found a meth syringe with some blood in it, but a full load waiting to be shot up, I'd charge the whole cc volume without titrating out or decanting off the blood.
As far as the residual parts per million in the blood stream as part of the very disgusting examples put forth by AlexLayMan, and the idea of 'reloading' blood, I think the practical application of that would be absurd. I think contemplating the indictment of a swimming pool or a diabetic test strip or even a santiary device is peccant woolgathering.
I agree, Philip, my examples were absurd... I've already acknowledged that.
Those examples were satirical attempts to illustrate a simple point. Regardless of the statutory definition, intent remains an element of this offense to the extent that intent is inseparable from common sense.
Also, I am NOT saying that any of the actual cases mentioned in this thread defy common sense.
I could probably start a new topic, but my question seems closely enough related to that being discussed here that I will post it here. Officers discover baggie containing "mushroom heads and stems". Lab report reads "Exhibit 1, net weight: 8.93 grams, result- contains psilocin". Possessor is indicted under 481.116 (a)(d) for possession of penalty group 2 CS in the amount of four grams or more but less than 400 grams. I feel certain the laboratory is stating the gross weight of the mushrooms. Any problems? Are mushrooms a "substance containing a controlled substance"? Are there any dilutants or adulterants involved in this type of case? The issue was not presented in Roth, 917 S.W.2d 292- the only mushroom prosecution I could find.
Thanks to Phillip for getting me up to speed on what constitutes a "bloodshot" ... Martin, I sure hope the rest of the mushroom counts because my task force recently busted a guy for 25 pounds of it. Actually, this one seems pretty clear to me because the bulk material in the mushroom is ingested along with the drug. So it clearly could not be said to be a byproduct or waste product. In fact, I guess you couldn't have the drug without the other stuff because it all grows together as one plant (or whatever a mushroom is). As such, I think it qualifies both as a "substance" containing a controlled substance, and a "material" that increases the bulk or quantity of a controlled substance.
Tim: Don't thank me, I asked one of our meth addicts.
Alex: I just wanted the opportunity to use 'peccant woolgathering' in a sentence. I honestly don't know where the line should be drawn on quantitative mixtures. I'm concerned that eventually some activist judge will tell us. Although, with the definition of adulterant or dilutant being: "any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substace," I don't think that the volume of the pool would qualify. I think it's intended to include such common substances as sodium bicarbonate which is commonly added to cocaine to make crack. Mixture is not defined, and therefore is the tricky part here.
Martin: I think any attempt to separate out the delivery mechanism, in this case the fungus around the Psilocin, would be just as problematic as trying to determine the quantity of LSD on a small tab of cardboard or in a cube of sugar. (although those are specifically defined as 'units' in the Health and Safety Code.) Separating out the oils and tannins from the THC in Hashish also would be difficult and unreasonable. We have a mushroom case where we've charged over 1 under 4 grams which includes obviously the total mass of the mushrooms.
Because the mushrooms grow in many different varieties, it's not possible to have as clear a definition as the one for Peyote, but I think it is a good guideline for the charging of a mushroom case. 481.104(a)(6).
[This message was edited by Philip D Ray on 06-30-04 at .]
More info on Mushrooms, try www.erowid.org where drug users discuss and describe their experiences to share information regarding a wide range of substances.
I followed Philip's link to erowid.org and was surprised at how many different species of mushrooms contain PSILOCYBIN & PSILOCIN. The most potent has more than 10 times as much as the least. Also interesting was the dosage disparity between fresh and dried mushrooms, in the first one that I clicked on the dose was 5 and two-thirds grams fresh (1/5 oz) or one quarter of a gram dried. See: P. baeocystis
This is the difference between a SJF and a 2nd degree... so it bumps it up 2 rungs on the punishment ladder.
Elsewhere on that web sight, I found a suggestion that drinking mushroom tea may be more palatable than eating them raw. This brings up the possibility that a single dose of mushroom could qualify as a 1st degree (5 to 99 years or life) because 400grams = 400 milliliters water -- or just slightly more than a 12 oz. cola.
Whatever the delivery mechanism, Google says that the effective dose of pure PSILOCYBIN is only 10mg. In another place on that erowid.org site there was mention of using alcohol or pentane (petroleum ether) to extract the PSILOCYBIN & PSILOCIN from the mushroom. The extracted material is then placed into an empty capsule and swallowed. Under this scheme, a dealer could have 100 dosage units before crossing the 1-gram boundary between State Jail and 3rd degree or FORTY THOUSAND doses before qualifying for the 1st degree!
I'm not saying that this law needs to be changed but I am suggesting that perhaps there should be a sort of "dosage unit" affirmative defense. So it would work like self-defense in assault because you can't realistically claim both theories. (ie: That you were not involved and that you were only acting in self-defense.) The drug defendant would likewise need to stipulate to possession in order to contest the number of doses.
I don't know enough about the law to say how this should shift the burden, but I would like to believe that it would fall on the defendant... at least by a preponderance.
Also, if this was an affirmative defense, it seems like you could put it into the jury charge. Any sympathy the defense attorney is able to garner because of a diluted active ingredient would then have a built-in safety valve against nullification. "If you find by the evidence that Mr. Badseed was in possession of a controlled substance, but the total amount was 4 doses or less, you will find the Defendant guilty of a State Jail Felony Possession."
I have a feeling that there are probably some huge downsides to this approach but I can't quite put my finger on them.
Anyway, I think that the NUMBER of doses is useful to think about in the sense that different drugs have different effective doses... like the way LSD is handled separately in 1-A because the effective dose is measured in fractions of a gram.
The law doesn't say this, but I like to think about the punishment ranges like this:
< 1g = Personal use
1g - 4g = The Friends & Family Plan, or heavy user
4g-400g = Drug Dealer
> 400g = Drug Kingpin
Now I'm so far off-topic y'all will think that I've been eating these mushrooms.
EDIT: Now I am definately guilty of woolgathering.
[This message was edited by AlexLayman on 06-30-04 at .]
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