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 johnm214
 
Registered: 05/31/07
Posts: 6,519
Loc: Americas
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 What is knowing possesion of a controled substance when applied to plant products, i.e. San Pedro?
#8178245 - 03/21/08 11:31 PM (6 months, 21 days ago) |
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The law regarding controlled substances makes it an element of the offense that the accused knowingly posses a controlled substance:
21 USC sec 841(a)
Quote:
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
Does anyone know what is required to be known to the individual in the case of plants which are controlled substances themselves, by virtue of their chemical composition- not cuz they were specifically listed as a controlled substance, per the definition of the law?
For example, san pedro seems to be mescaline per the controlled substance act. As San Pedro contains mescaline (the chemical), it is mescaline (the legaly-defined noun).
So is it required that you know the cactus contains mescaline (the chemical) for it to be a knowing possesion of the cactus (itself mescaline per the law), or is all that is required to be known that you possesed the cactus, as the cactus was the drug itself.
I guess this is analogous to the question of... If you buy caffeine powder from someone, and the government concedes that you thought it was caffeine, but it turns out to really be cocaine, is it still a knowing possesion? You knew you possesed the substance, which was the drug , but you didn't know you possesed the drug (chemical).
I don't know, I would hope that you'd be required to know that you possesed the drug in the case of a plant or fungi not scheduled itself (san pedro, magic mushrooms), but what is the bare bones law?
I know this is likely to never come up, but just curious what your thoughts are, or if anyone knows any authority.
Another example is that if you pick mushrooms, not scheduled, but some contain scheduled chemicals. Is it a knowing possesion because the mushrooms are themsleves psilocybin per the defintions in the act? Or is it only knowing possesion if you knew that the mushrooms contained the actual chemical?
How about with listed species? Is it illegal to posses papaver somniferum if you don't know that it contains morphine, but you do know you posses the actual species? I would think this is unquestionably yes. In this case, the plant species IS the drug by definition, not by extension due to its chemical composition.
But in the case of the san pedro, the species itself isn't per se illegal, but the plant itself is mescaline due to its containing mescaline.
Interesting question.....
(and lets not get into what can or cannot be proved or what will or won't ever happen. This is a thought experiment)
I'm kinda toasted, so pardon any confusion or logical gaffes.
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My own take...
Criminal laws are to be interpreted in the way most favorable to the accused.
Therefore, you are required to know that you possesed the actual illegal drug and that you knew it was the drug (which can be a plant, so p. somniferum possesion is illegal if you know it is p. somniferum irregardless of whether you know it contains listed drugs other than itself, p. somniferum.
So, if you possesed san pedro with knowledge that it contains mescaline, this is the same as if you knew that the plant was a drug under the definitions of the CSA, therefore; you are guilty.
If you possesed the san pedro without knowledge that the plant contains mescacline, and therefore couldn't be aware, even if well-read on the law, that the plant itself is mescaline per the CSA, you are not guilty, interpreting the statute most favorable for you.
However, as p. somniferum poppy is listed as a drug itself, if you posses this, with knowledge of its species, you are guilty. If you didn't know it contains morphine, or if it didn't contain morphine but was still p. somniferum, it is no defense, because the plant is illegal independant of its content.
The corolary would seem to be that if you knew you possesed poppy, but didn't know, or shouldn't have known given your knowledge, that it was somniferum, you aren't guilty.
Mushrooms would be analogous to the san pedro, not specifically illegal, but a drug by definition of the CSA, therefore you are required to know that the mushrooms contain illegal drugs, whether or not you knew the drugs were illegal, for you to be guilty.
Again, lets not worry about the practical application, just curious about what the law is... what are your thoughts?
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 Brainiac
Ghost
Registered: 04/29/06
Posts: 8,719
Loc: I will know,when I'm ther...
Last seen: 25 minutes, 5 seconds
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Re: What is knowing possesion of a controled substance when applied to plant products, i.e. San Pedr [Re: johnm214]
#8178285 - 03/21/08 11:47 PM (6 months, 21 days ago) |
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I know, they can get you on saleing a fake drug...
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I'm dyslexia, so get the fuck over it. "Ardet Nec Consumitur" (burned but not destroyed) People shouldn't be afraid of it's government.The government should be afraid of it's people..
Spores I need
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fastfred
Registered: 05/17/04
Posts: 4,326
Loc: Dark side of the moon
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Re: What is knowing possession of a controlled substance when applied to plant products, i.e. San Pedro? [Re: johnm214]
#8178347 - 03/22/08 12:14 AM (6 months, 21 days ago) |
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Quote:
Mushrooms would be analogous to the san pedro, not specifically illegal, but a drug by definition of the CSA, therefore you are required to know that the mushrooms contain illegal drugs, whether or not you knew the drugs were illegal, for you to be guilty.
Unfortunately it's pretty clear that this isn't the way mushrooms are treated under the law. San Pedro is considered fully legal unless you are preparing or extracting it for intoxicating effects. Mushrooms are treated the opposite, unless you just accidentally picked a few amongst the other mushrooms you were picking.
I think in a lot of states or in case law it more or less says that possession implies intent to possess. For example the same as speeding laws. The mere act of exceeding the speed limit is evidence of intent thereof. Broken speedometer, bad brakes, etc. arguments aren't even considered. There are obvious problems with that analogy, but that's how I've seen it treated in court.
-FF
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johnm214
Registered: 05/31/07
Posts: 6,519
Loc: Americas
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Re: What is knowing possesion of a controled substance when applied to plant products, i.e. San Pedr [Re: Brainiac]
#8178472 - 03/22/08 12:58 AM (6 months, 21 days ago) |
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Quote:
Brainiac said:
I know, they can get you on saleing a fake drug...
yeah, but I don't see the point you're making?
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And fred, under the US law, at least, there isn't a presumption of intent in the statute... I'm sure its infered by actions of the accused though
And I agree san pedro is treated as legal, but I still think it is "mescaline" per black letter law. I agree you're unlikely to be prosecuted for it absent evidence of intent.
I just think the general tolerance is simply an artifact of ignorance and prosecutorial discretion, I don't think that an accused who knew san pedro contains mescaline has any defense accept a presumably weak selective prosecution defense.
What do you think? Do you think there's some law that would stop the government from prosecuting someone for possesion of mescaline based on the weight of the san pedro, if the guy admitted he knew the cactus was active?
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