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Summit County judge upholds new designer drug legislation
BENJAMIN WHITE
Associate Editor
Published: November 29, 2012
On Oct. 12, Judge Elinore Marsh Stormer of the Summit County Court of Common Pleas upheld the constitutionality of an Ohio law that broadly bans “controlled substance analogues,” also known as designer drugs, after defendants arrested for allegedly selling synthetic bath salts argued the law is impermissibly vague.
Though the defendants echoed arguments that proved somewhat successful against a similar federal law, Judge Stormer found that the “failure to specifically list or describe controlled substance analogues does not render the statute unconstitutional” and that doing so would defeat the legislators’ original intent.
The law in question (R.C. 3719.013) criminalizes substances “substantially similar” to Schedule I or II controlled substances that produce or are intended to produce similar effects for a user.
In October 2011, Barberton police carried out search warrants at Magic City Pit Stop and Magic’s Drive-Thru and arrested Adam Husein, Moamen Alghofari and Joseph Scherer, all employees of the small businesses, for trafficking in bath salts. According to the affidavit to obtain the search warrant for the Pit Stop, police had received dozens of complaints about the sale of bath salts from the locations, and undercover police had purchased samples to test.
The bath salts tested positive for pentedrone, a synthetic analogue to methcathinone, which is illegal. Though Barberton City Council had passed an ordinance banning the sale of bath salts in a declared state of emergency in June 2011, it did not specifically include pentedrone. On Oct. 25, 2011, the city amended the law to include the pentedrone and other substances, and the next day, police again purchased pentedrone in an effort to obtain the warrant.
Ohio legislators enacted R.C. 3719.013 on Oct. 17, 2011, giving law enforcement a choice of law under which to convict those trafficking bath salts. The Barberton police said they charged Husein and his fellow suspects under the state law because it could result in a felony conviction; violating Barberton’s bath salts ordinance could only carry a misdemeanor.
After being arrested and indicted under state law for trafficking in bath salts, the defendants, represented by Akron attorney Kirk Migdal, filed a motion to declare R.C. 3719.013 unconstitutional. Because the Ohio controlled substance analogue statute was so new, no Ohio case law addressed its constitutionality at the time.
Migdal urged the court to consider the mixed case law surrounding the Federal Controlled Substances Act (FCSA), which read identically to the statute in question in the portions critical to the motion.
In 2004’s U.S. v. Roberts, the 2nd Circuit Court of Appeals considered a similar case. A grand jury from the Southern District of New York had returned indictments against two men who had distributed analogues of GHB, a “date rape” drug. The district court struck down the federal analogue statute as void for vagueness, putting great weight on a seeming lack of consensus among expert witnesses as to the definition of “substantially similar,” a legal, unscientific term. The 2nd Circuit, however, upheld the law as applied, noting that the chemical compound only differed by two atoms and metabolized into the GHB after injestion. In his motion, Migdal argued that such cases “serve to demonstrate how fact-intensive the inquiry is.”
“’Substantially similar’ is not a term of art for chemists, and the statute and corresponding definitional section do not illuminate the meaning of those words,” he wrote. “The analogue statute provides the defendant which no notice of what is prohibited and allows for arbitrary enforcement.”
In Judge Stormer’s order on the matter, she cited U.S. v. Klecker (E.D. Va. 2002), which upheld the same federal law. In that case the district court found that the very purpose of the statute required elasticity and prevented a specifically listing prohibited analogues of illegal drugs.
The court also considered U.S. v. Niemoeller (S.D. Ind. 2003), another challenge of the FCSA. The defendant in that case argued that a person might need expert advice from a chemist to determine whether a compound qualifies as an analogue. The district court held that it expected any person engaging in such technical matters to “acquire the necessary specialized knowledge to conform the person’s conduct to the law” and specifically tied that point to drug production. Judge Stormer then cited additional federal case law that upheld the constitutionality of the language in question.
“The very purpose of the statute is to prevent underground chemists from creating new drugs that circumvent the laws applied to already illegal drugs by slightly changing the drug’s chemical structure,” Judge Stormer wrote in her order.
In the evidentiary hearing, the court had considered the testimony of two experts: a toxicologist called by the state and a pharmaceutical chemist called by the defense. The state’s expert opined that “the drugs seized from defendants would have [the] same effect on the central nervous system as those that are currently illegal.” The defense’s expert testified that, since no scientific testing had been conducted on the drugs, a chemist could not predict the effects on humans.
The state’s second witness, an incarcerated former bath salts addict, erased any ambiguity in the court’s opinion. He testified that he would buy 10 packets per day from both stores at $20 per packet. He said he ingested the drug “every way you could take it.”
“The bath salts were a better high then meth,” the former drug aficionado said. He said it took months before his head was clear after he quit.
The former addict’s testimony coupled with that of the experts led Judge Stormer to conclude the drugs fit the legal definition of “substantially similar.”
“We didn’t really specifically focus in on one test,” she said. “It was more the totality of the circumstances, which suggested that the legislative intent was to get in front of designer drugs.”
At the end of her order on the matter, Judge Stormer briefly mentioned that she had recently become aware of a new legal designer drug dubbed “Smile.” She later compared today’s battle with designer drugs with the rise of ecstasy and its analogues throughout the 1980s.
“We can’t always be running after the chemists,” she said. “They’re much faster than we are. They’re entrepreneurs – this is America.”
The ongoing case is cited as State v. Husein (2012 01 0233 A). A hearing on the defense’s motion to suppress is set for Dec. 12 and centers on alleged errors in the search warrant carried out on the two retailers.