May 18, 2010, 16:17Brett Peabody
Controlled Substance Analogue "Spice"
We have reached some kind of tipping point in Montgomery County and now we suddenly have a serious problem with kids using "legal" marijuana substitutes like "Spice Gold","Mojo", and "Serenity Now". See recent thread in Criminal category.
The Austin DPS lab seems to have the most experience with this stuff (go figure), and they tell me that chemists may not be able to testify that the most common active ingredient, JWH-18, is chemically similar to any of the substances listed in the Controlled Substances Act.
However, I think we CAN provide proof that JWH-18 and its derivative products were specifically designed to produce an effect similar to marijuana.
Since the health effects of this stuff are unknown, we worry that our kids will all destroy their little brains before the legislature can act to include JWH-18 in the Controlled Substance Act.
In the meantime, I'm thinking about prosecuting these cases under H&SC 481.106(2). Has anyone tried this before? Is this a lost cause? Should I just wait for the legislature to act?
I want to do something before all our children turn into little "Spice" heads!
[This message was edited by Brett Peabody on 05-18-10 at .]
May 21, 2010, 13:57Brett Peabody
Is it possible that we are the only county with a serious fake weed problem in our schools?
Well,unless somebody talks some sense into me, I intend to take this seldom-used controlled substance analogue statute out for a spin! I'll let you all know how she handles.
Hoping to get some momentum up for legislative action next year!
May 21, 2010, 16:24Brody V. Burks
I can only offer this- the recent discussion regarding fake weed and the fact that I saw it for sale at the convenience store by my house have set me into motion intending to write a memo on it. I'm hoping that some polite visits with the store owners selling the stuff will be productive. I'll let you know what I manage to put together. Keep us informed too! Unfortunately I just think you're at the bleeding, leading edge of this. Not much guidance to be had anywhere...
August 05, 2010, 13:33Thomas Pfeiffer
I don't see why 481.106 wouldn't apply. please let me know how that turns out
August 17, 2010, 10:49Brett Peabody
Filed petition for first "test" case: Officer seized substance from child in school bathroom. DPS lab confirmed the substance is JWH-018. DPS Forensic Scientist can testify that JWH-018 was specifically designed to mimic synthetic THC, which is listed in Penalty Group 2. So, everything is set, I believe, for eventual adjudication.
Of course, the child will appeal on due process grounds because of all the media hype (including some law enforcement officials!)claiming that this substance is legal to buy and possess in Texas. Any ideas on how to combat this argument?
Just planning ahead here...
February 11, 2011, 16:03Brett Peabody
The kid pleaded true and accepted probation when I wasn't at the bench. He even waived appeal. Sure didn't see THAT coming. Oh well... There are other cases in the pipeline that may turn out to be good test cases. Proceeding cautiously. Will update later.