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Increasingly, police are seizing meth labs in the middle of a "cook." Often, there is only a little bit of finshed meth mixed crystallized on top of a bunch of ingredients. The question is then whether you have a 1 gram of meth case or over 400 grams of meth including adulterants and dilutants. Is there any consensus on the proper method of charging the case in this situation? Anyone know of any court opinions on point?
We have briefed this issue in Wright v. Texas, No. 11-02-00006-CR and Ingram v. Texas, 124 SW3d 672. Wright was remanded to properly address statutory construction issues, Ingram requested PDR but PDR disposed when no brief filed. In Ingram we charged all of the liquid (450 g) even though chemist testified that it would probably only yield 32g. Until a change in the statute or case law, I believe our office will continue to include the entire amount. Doesn't have to be adulterants and dilutants if you use the definition under 481.002(5). Term includes mixture, solution, or other substance containing controlled substance. See also Melton v. State 120 S.W.3d 339 (Tex. Crim. App. 2003) and Isassi v. State 91 S.W.3d 807(El Paso), Lilly v. State 119 S.W.3d 900 (Eastland) and Zone v. State, 84 S.W.3d 733 (Hous - 1st Dist)for supporting arguments.
[This message was edited by pkdyer on 06-17-04 at .]
We run into this issue in nearly all of our lab cases because seldom is the product seized in final form. I think the definition of controlled substance clearly includes the entire weight of the substance, and we charge it that way. There are times when charging the whole amount can be problematic. For example, I have a case pending where the suspect dumped his dope in the toilet but the cops got there before he flushed. They scooped all the water out of the toilet and weighed it. It's now a lot more "controlled substance" than it was before he dumped it in there. Technically, it all qualifies as dope and there is some appeal to the argument that the bad guy has to live with what he created. But I wonder how a jury will react to a 15 year minimum sentence for what we all know is mostly toilet water. FYI ... some of the DPS labs are separately testing liquid dope they find in layers. We have been getting a lot of lab reports showing negative results from some layers and positive from others even though the stuff is found in one container. I maintain it's all one mixture and should be weighed together under the definition. What do you think?
The definition of a controlled substance was deliberately amended in 1993 to make it clear that the entire mixture is considered. The amendment was written to overrule some bad case law from the Court of Criminal Appeals (authored by Judge Frank Maloney, who now sits as a visiting judge frequently in Austin). For cases discussing the new defintion, see Collins v. State, No. 06-97-00103-CR (Tex. App. -- Texarkana 4/29/98) and Warren v. State, No. 05-96-00092-CR (Tex. App. -- Dallas 4/27/98).
What if he dumped a quarter gram of material in a swimming pool? Surely you wouldn't charge him with having fifty thousand pounds of material !?!
First let me say that I am not a lawyer and I don't play one on TV.
H&SC 481.108 says: "Title 4, Penal Code, applies to an offense under this chapter."
And Title 4 of the Penal Code begins with:
15.01 Criminal Attempt
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than a mere preparation that tends but fails to effect the commission of the offense intended.
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, [...]
If less than 1 gram of meth is "finished" and the other 500 grams of ingredients are still "cooking" then it seems you've got a state jail felony on the finished product and "one category lower" on the remainder. This raises an interesting question because there are 3 punishment "categories" within the first degree felony offense depending on the amount of drugs:
4g - 200g = 5-99 years, $10,000 fine (normal 1st degree felony punishment)
200-400g = life or 10-99 years, $100,000 fine
over 400g = life or 15-99 years, $250,000 fine
So with 500 grams of ingredients does one category lower put you in the middle punishment category with 10-99 years or does it drop you from a 1st degree to a 2nd degree for 2-20 years? What is the meaning of "category" ?
It seems you could also charge the balance of the ingredients under H&SC 481.124 (Possession or Transport of Certain Chemicals with Intent to Manufacture Controlled Substance.) This would be a separate 2nd degree felony because:
(e) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.
Alex, I think many prosecutors think it is easier to explain and prove a "regular" offense as opposed to an "attempt" offense. You raise an interesting issue with regard to the interplay of the special punishment categories in the Health and Safety Code vis a vis the requirment that punishment for an attempt offense be one category lower than the attempted offense.
It's worth pointing out that the "1/4 gram in the pool" example would be very much atypical of a Manufacture or Deliver case, which is the basis of the punishment range cited. I doubt if many of us see an ethical or legal dilemma posed by going with a higher grade offense for a drug dealer even though the attempt statute could allow for a lesser charge. Isn't that why prosecutors have some discretion in all cases to be harsh or lenient with punishment range?
The swimming pool example really is a bit unrealistic. But let's return to my more realistic example, the toilet. We don't know how much dope the guy actually has when he dumps it in there. Might be less than one gram, might be more. Who knows. You could charge the guy with tampering with evidence, which will probably be a lesser charge than if he had been caught before he dumped it. So ... do we let the guy improve his status and get a lesser charge by destroying evidence? And, again, regardless of how one feels about the fairness of charging someone with the full amount, as John B. points out, the definition of controlled substance provides for it.
Well I definitely don't think people should get a better deal because they destroyed evidence but, on the other hand, the 15-year minimum and $250,000 fine was probably intended for kingpin level activity. Too bad there isn't some middle ground.
The definition that Mr. Bradley refers to is:
(5) "Controlled substance" means a substance, including a drug, an adulterant, and a dilatant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.
Unless I missed it, there is no definition given for mixture, solution, or substance. If I recall my chemistry correctly then "mixture" means a substance made up of two or more other substances that have not chemically reacted with each other. If sugar and salt were combined in a bowl then that would be a mixture. Different layers of liquid in a container might be a mixture in this sense of the word, but it seems that at least one DPS chemist does not consider distinct layers to be part of the same "mixture".
A solution is a special type of mixture where the component substances are completely dissolved in each other. A solution is usually a liquid but not always, a metal alloy is a type of solid solution. The layers can't be a solution because they are obviously not dissolved in each other. Each layer could contain a solution unto itself but one layer is not in solution with the other.
I looked at the case law referenced by Mr. Bradley but the adulterants/impurities in those cases were part of the finished usable quantity of drugs. I'm not sure if that would or should make any difference.
The old outdated definition & case law required the adulterants or dilatants to have been intentionally added to increase the bulk of the drug. So if Joe "cuts" his cocaine by mixing it with chalk, he could be punished for the weight of the cocaine AND the chalk. My guess is that the reason that this old rule was rewritten is that if Joe sells these drugs to Bill, then Bill didn't necessarily have any INTENT with regard to the chalk. The new rule removes this problem and allows Bill to be prosecuted for the entire mass.
I was curious as to the significance of two layers for drug labs so I did some Internet searches. The irony is that, apparently, the purpose of the two-layer process is to make the drugs more pure rather than less. The impurities go into one layer and the drugs into another. The process is referred to as Acid Base Extraction.
PS: I saw several full web pages out there about how to make drugs, is this legal?
We've charged the whole tub of juice. Once the chemical reaction starts producing methamphetamine, you're at the primary stage of synthesis. Generally, we catch them after synthesis and all they have left to do is filter out the crystalline powder.
If the chemical process has yet to produce any methamphetamine, then you can charge possession of certain chemicals with intent to manufacture.
Once it starts the actual production of meth, I think you should charge the whole bucket of goo. To do anything else would be to require the arresting officers to either a: get an expert to determine approximately how much would be produced, or b: finish the cook and measure the results.
If you go with A, you're speculating that there were no more ingredients to add to the mixture.
If you go with B, well, that's just silly, isn't it?
As far as the toilet goes, it's not only funny, it's fair.
Oh I laughed out loud at this one!
Your practical approach is surely the best. I forgot that we are not talking about a neat little laboratory but rather a toxic waste dump.
Oh, I guess we can argue if we want about what the meaning of "is" is, but it seems pretty clear to me that this definition was written in order to cover every possible combination of materials and to do away with any requirement that we do all those things that you are talking about to determine exactly what is in the stuff. If I recall my legislative history correctly, John B. you wrote this change, didn't you? And what makes you think that the DPS chemist is making some sort of decision based upon his knowledge of "mixtures" in chemistry? It could very well be that he just doesn't understand the law. Prior to the legislative change mentioned above, testing the layers would have been required by the caselaw in effect at the time. As an example, I had a case where the same chemist (not mentioning any names) had two submissions to test: one small package of methamphetamine weighing less than a gram and one sample of anhydrous ammonia. He tested the actual dope first, and finding that it was methamphetamine less than one gram, he then did not test the anhydrous because "you really didn't need it since you had an actual controlled substance." Might make sense ... if you didn't know that the dope is a state jail felony and the anhydrous is a second degree felony.
Perhaps the Legislature can be persuaded to enact a provision, which would enhance punishment of any offense, if the State charges & proves that in the course of committing the crime, or seeking to hamper investigation, discovery, or prosecution of the crime, the defendant alters, conceals, destroys physical evidence. Then we could charge the tampering w/ evidence portion as sort of a rider, like we do when we add deadly weapon language or age of victim language to either increase punishment, or turn the crime into a 3g offense, or turn it from a misdemeanor to a felony. That way, the doper, who dumps his small amount of dope into the toilet, or swimming pool can be charged w/ the dope he actually possessed/manufactured and have his punishment increased for trying to get rid of it before the cops could grab it.
As for how to charge?
Our practice here is to charge the entire weight of the substance including the goo/liquid in which it is found, regardless of the stage of the cook (as long as some meth has actually been produced). If the meth has yet to materialize, then we go w/ possession of whatever with intent to manufacture.
As for the question of what total weight to charge?
My atitude is, if we've got a little bit of dope in a big vat of something else (adulterant/dilutant), we ought to go ahead & charge the whole weight (unless it seems plainly ridiculous to the prosecutor) and then let the jury decide whether to convict on the charged offense, or of a lesser included offense. I suppose we prosecutors could be put in a position to actually request charges on lesser includeds ourselves, where we have very little dope in comparison to the total weight of the substance, in which the dope was found.
What if the defense is able to obtain chemists, who will testify that once the meth is made, it is not mixed, diluted or adulterated simply by being in some liquid. I mean, once it's been turned into a salt and has precipitated out - even if not yet removed from the liquid, is it a separate substance merely lying underneath a liquid? I suppose also that a chemist expert could testify at some point that the meth at the bottom of a container is not adulterated/diluted by the liquid above (and from which it came), any more than dried meth is adulterated/diluted by the air surrounding it. Of course, you could then argue about whether the undried meth in the liquid is suitable for consumption and that's how to distinguish it from dried meth arguably ready for consumption (prior to any cutting).
Or maybe we could get the legislature to amend the existing provisions and specifically include in the definitions of "adulterant & dilutant" any substance used a catalyst, or which contains a component of eventual methamphetamine?
Or even include the weights of the chemicals/substances used to make meth even if they were not used up totally in the cook? (i.e. extra ingredients/catalysts not used in the particular cook in question)
Good stuff, Trey. The one note of caution I might throw in is ... when we begin to tinker with the definition we may wind up with something that was unintended. It would be terrible if we tried to write a better statute and wound up with something that requires us to (1) determine somehow what "stage" of production the meth is in, or (2) whether the other stuff is a byproduct or a precursor or toilet water. In other words, I never want to be in the position of having to find some expert to tell me (or a jury) whether this stuff I have here is meth before it was powdered or "bones". I think it's pretty clear right now that if it has any meth in it, we don't have to show whether this was really the stuff that would have eventually become the powder. I think that burden is right where it should be. If the defendant wants to try to convince the jury that this stuff he had really isn't meth, more power to him. We have to be very careful about changing the definition that we have now.
I agree that we do not want to monkey with definitions and end up w/ a tougher burden, or more complex charges, or complex proof - any more than we already have. I was thinking out loud and it occurred to me, what if some smarty defense lawyer comes up with a chemist, who would testify that the meth wasn't adulterated, or diluted by the top liquid, because it had separated, thereby greatly reducing the total weight we charge? And does diluyted, or adulterated mean the dope has to be soluble in the liquid adulterant/dilutant? I know it isn't hard to mix solids together, but solids & liquids don't mix unless the solid is soluble. Obviously, the meth-cooking methods are designed to get the dope out of the liquid and in order to do that, the meth cannot be soluble in the particular liquid. So if it's impossible to really "mix" the meth & the liquid from which it was precipitated, can we logically say the liquid is an adulterant, or dilutant?
My attitude is yes, because the meth was actually in the liquid & had to be acted upon to get it out by some catalyst, or additive: HCl. Again, just wondering what if?
We have a case on PDR (the defense has not responded and the CCA has not ruled yet) where the court of appeals held that blood mixed with drugs and squirted into a tube after an unsuccessful attempt to inject the drugs was "waste" and could not be considered an adulterant or dilutant!!
Why was he keeping the mixture next to the bed with all the other paraphernalia if he didn't think he might use the drugs later? Does an addict who will inject drugs of uncertain origin and identity really care about a little stale blood mixed in?
Bottom line.... under the current law, is blood within the general definition of adulterants and dilutants?
Interesting. Had not thought about how blood shots might be interpreted. But, again, under the combined definitions of "controlled substance" and "adulterant or dilutant" it is difficult for me to see how the blood does not fit into "any material that increases the bulk or quantity of a controlled substance." The user draws the blood into the syringe with the express intention of then reusing the syringe, don't they? Or am I misinformed about what a " blood shot" is? Also, how is this blood not a "substance" that is part of a "mixture, solution, or other substance containing a controlled substance"? I think the definition was written to cover ANYTHING that might be found with the dope for the express purpose of overruling the old cases that required us to show that the diluting substance, whatever it might be, did not have a chemical effect on the meth. Am I wrong here ... or are we overcomplicating this issue? You should win this.
Yeah, but often they'll re-run the leftovers to extract that last bit of meth that didn't particulate out in the first place.
So, I'd argue it's two different possessions of methamphetamine which we usually handle as one quantity anyway.
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