Designer Drugs: A New Legal High?

A new wave of designer drugs stretches the limits of what is legal in America.  Designer drugs or “analogue” drugs,  are spreading quickly as a new way to get high and some claim that selling or possessing these substances is legal.  This includes the  so called “legal marijuana” or bath salts.   Many vendors of designer drugs can be found in local gas stations, or other easily accessible stops, but are they truly legal?  It seems that case law is not entirely clear.

In order to answer the question of whether these substances are illegal, we must first look at what makes drugs illegal.  In order to be charged with a drug crime, one must break a specific law.  That law could be a federal drug law, or a statute passed by the state legislature.  In Ohio, those laws would be found in the Ohio Revised Code (ORC).  Under Federal law there are two main ways a person could get charged with a drug crime.  The first, and most prevalent way is by dealing or using a “scheduled” drug.  Under the Controlled Substance Act, hundreds of drugs under their chemical name.  Once a drug is listed it is considered “scheduled” and becomes illegal to distribute or possess the drug with the intent to distribute.  This act covers hundreds of drugs, including the most commonly used drugs: marijuana, cocaine, and methamphetamine.

However, people saw an opportunity under the Controlled Substance Act to create new drugs that act like the old drugs, but that are not “scheduled”.  Designer drugs, or analogue drugs,  are made by modifying the molecular structure of a scheduled drug to make the end product different enough so it is no longer classified as a scheduled drug.  These substances were then readily sold-and presumed legal.  However, legislature passed another law called the “Analogue Act” to close this legal loop hole.  Under this act the substance must: 1) have a “chemical structure” substantially similar to a controlled substance; 2) have, be intended to have, or represented as having “pharmacological effects” substantially similar to the controlled substance and must 3) be intended for “human consumption”.

But the story doesn’t end there.  While this act has made it illegal to consume these new designer drugs a serious legal loop hole still exists.  The problem is the law requires substances to be “intended for human consumption.”  While it is clear that consuming analogue drugs is illegal, it isn’t clear if it is illegal to merely produce or possess these drugs.   Some distributors try to use this potential loop hole to their advantage.  Some place labels on the products stating that is not intended for human consumption, while others make the products into “incense” with the hopes that these actions alone keep them on the right side of the law.

Cases are making their way through the Ohio and Federal court systems  providing new guidelines in this rapidly developing area of law.  In the meantime, even if a vendor says it is legal, that probably not be the case.  It is wise to stay far away from any substance that claims to be the legal form of any popular drug.  A mistake could be costly and could result in a criminal record, prison time, and fines.

Have you been charged with a crime?  Attorney W. Joseph Edwards has over 30 years of experience in criminal law and has represented thousands of clients.  He is available 24/7.  Call for a case evaluation at 614.309.0243.





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