By Vince Imhoff, Esq., & Dan Rhoads
I. PROPOSED NEW LAWS
In June, Riverside County, California, passed an ordinance that would require retail buyers of specific cold medicines to register their personal information with the drugstore. Literally overnight, the board of supervisors rescinded the measure when the countys lawyers pointed out that the state has exclusive authority to regulate drug sales. The House of Representatives is mulling a proposed law that would be similar to the Riverside ordinance, at least in spirit.
The ordinance would have required customers who buy even one package of cold medication that includes pseudoephedrine, phenylpropanolamine or related compounds to provide their names, addresses, telephone numbers, and drivers license numbers to a store clerk (Ramos). The store would have been required to keep the records available for request by law enforcement for three years.
The final version is quite different. It merely requires convicted methamphetamine makers to pay for the cleanup of their hazardous labs and establishes a county fund for rewards to tipsters who help with successful prosecution of meth producers (Rosenblatt).
Although the ordinance raised privacy concerns, its sudden death was due to jurisdictional defects. Congress faces no such barrier.
Federal Law for Methamphetamines
Because the methamphetamine problem has grown from a regional scourge to a national epidemic, Congress is passing federal legislation to confront the issue. An example of a pending law is the Combat Meth Act.
The Combat Meth Act would, among other things:
- classify pseudoephedrine as a Schedule V drug, meaning products containing pseudoephedrine must be kept behind a pharmacy counter and sold only by a pharmacist or pharmacy technician (Feinstein Press Release);
- require customers to present proof of identification and to sign a written log containing the date of the transaction, the name of the buyer, and the amount of the substance purchased;
- limit consumers to buying only nine grams of products containing pseudoephedrine over a thirty-day period; and
- create Special Assistant U.S. Attorney positions under which prosecutors could bring legal action against manufacturers and distributors in federal court.
The legislation is patterned after a similar Oklahoma law that has been given partial credit for an eighty percent decline in meth lab seizures in the state.
Privacy Concerns Raised by Combat Meth Act
Although the Combat Meth Act is not as intrusive as Riversides ordinance would have been, it still raises privacy concerns. The requirements unnecessarily stigmatize people who need medicine or who care for others that need medicine, and such a stigma might prevent people from seeking the treatment they need. Also, the law makes specific medicines available only during pharmacy hours, thus harder to obtain when needed.
According to the American Legislative Exchange Council (ALEC), such actions will violate consumer privacy and will create undue burdens on retailers and pharmacists, all while limiting access for patients and not accomplishing the goal of ending the production of methamphetamine (ALEC Press Release).
Effects of Restricting Access
It is true that making the precursors less accessible has in the past led to lower production levels. In the late 1980s, federal and state lawmakers created laws to make it harder for people to buy the chemicals needed to create methamphetamine (Conaughton). As a result, the Mexican drug-trafficking organizations (DTOs) were forced to get the precursors from other countries, such as China, India, Poland, and Germany (N.D.I.C.).
The restrictions cut down the number of superlabs in the United States, but they also prompted the spread of mini-labs that operate out of homes (Conaughton). Given the fact that the large-scale operations, which are responsible for practically all the methamphetamine in the area, have already been made to look overseas for their ingredients, the new laws potential impact on them is dubious.
Targeting the Bulls Eye
A law targeting high-volume transactions would be more likely to disrupt the supply of methamphetamine. In 2003, Canada passed legislation to control the distribution of precursor chemicals by investigating pharmaceutical companies suspected of selling ingredients to DTOs. In the first year after the law took effect, seizures of meth tablets dropped by about fifty percent (Rood).
The superlabs must continue to be the focus of law enforcement measures. In March 2004, sheriffs deputies served a warrant on a meth lab in a two-story barn on a 10-acre parcel southeast of Perris. They found enough methamphetamine to produce 120 pounds of the illegal drug (Hall).
Each of the three men apprehended was convicted for manufacturing a controlled substance, for possession of a controlled substance for sales, and for related conspiracy charges. Each defendant was sentenced to 15 years. The shutdown of the laboratory put a significant dent in methamphetamine distribution in and around Southwest County (Id.).
By targeting large-scale operations, law enforcement allocates its resources where they have the greatest impact.
II. CALIFORNIA LAWS
Because California, particularly Riverside and San Bernardino Counties, has become the methamphetamine capital of the United States (N.D.I.C.), the state has the most comprehensive anti-meth legislation. Because methamphetamine is a synthetically manufactured substance, the law necessarily addresses all levels of production and distribution. The laws reflect the idea that each successive step toward manufacturing meth is a more serious crime meriting increased punishment. People v. Perez, 29 Cal. Rptr. 3d 423, 430 (2005).
Manufacturing of Methamphetamine
Manufacturing methamphetamine carries the stiffest penalties among the anti-meth laws. A person who manufactures, produces, or prepares methamphetamine can be imprisoned for 3, 5, or 7 years and fined up to $50,000. Cal Health & Safety Code 11379.6.
In addition to restricting access to chemicals like pseudoephedrine, California has criminalized its possession with intent to manufacture methamphetamine or any of its analogs. Cal. Health & Safety 11383(c)(1). In addition to criminalizing substances like pseudoephedrine, which can be precursors to making methamphetamine, the courts have also allowed prosecution when a defendant possessed chemicals essential to making the precursor chemicals.
When sheriffs deputies searched Lisa McCalls cabin, they found boxes of ephedrine tablets, sinus medication containing pseudoephedrine, and the type of equipment used to manufacture methamphetamine. People v. McCall, 8 Cal. Rptr. 3d 337, 339 (2004). McCall was arrested for possession of hydriodic acid with intent to manufacture methamphetamine, even though she had not yet processed the acid, under the provision that, possession of essential chemicals sufficient to manufacture hydriodic acid . . . shall be deemed to be possession of hydriodic acid.
The California Supreme Court upheld the law and McCalls conviction. Later, the legislature changed the language of the statute to say, Any person who possesses immediate precursors sufficient for the manufacture of . . . hydriodic acid . . . with intent to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. Cal. Health & Safety Code 11383(f).
It is illegal also to furnish substances, laboratory glassware or apparatus, or chemicals for manufacturing methamphetamine. A person guilty of furnishing precursor chemicals with knowledge or the intent that the recipient will use the substance [unlawfully to] manufacture a controlled substance is guilty of a felony. Cal. Health & Safety Code 11104(a). Someone who furnishes the laboratory equipment or precursor chemicals, with knowledge of their purpose, is guilty of a misdemeanor. Cal. Health & Safety Code 11104(b).
Methamphetamine Distribution or Transportation
Distributing controlled substances such as methamphetamine carries a penalty of 2, 3, or 4 years in state prison. Distributing includes transporting, importing into the state, selling, furnishing, administering, giving away, or offering to do any of those things. Cal. Health & Safety Code 11379.
Transporting a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. People v. LaCross, 109 Cal. Rptr. 2d 802 (2001). Any quantity large enough for one person to use qualifies as a usable quantity. Any movement of the drug from one place to another constitutes transportation, even if a person is just walking across a parking lot with meth in his jacket. People v. Ormiston, 129 Cal. Rptr. 2d 567 (2003).
Possession of Methamphetamines
Possession for sale is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. The elements of possession for sale are (1) possession of the dangerous drug, (2) for the purpose of selling it. People v. Allen, 254 Cal. App. 2d 597, 602 (1967). Although in some situations, the circumstances make a sellers purpose obvious, the vagueness of the law can invite prosecutorial overreaching.
At trial, police officers may testify as to factors that point to an intent to sell. People v. Harris, 99 Cal. Rptr. 2d 618 (2000). These factors include the quantity, packaging, and normal use of an individual. However, an officer may not opine about intent without any evidence supporting the opinion. People v. Newman, 95 Cal. Rptr. 12 (1971).
Simple possession carries the least severe penalties. Although it is punishable as a felony, the maximum punishment, absent aggravating factors, is imprisonment in a county jail for . . . not more than one year or in the state prison, Cal. Health & Safety Code 11377, and a fine of up to $70.
Methamphetamine is a growing danger. Its use leads to addiction, crime, and child abuse. Its manufacture causes pollution and can lead to explosions. Trade in methamphetamine involves large, international drug-trafficking organizations.
In order to meet the threat, legislatures are pulling out all the stops. While all the laws are well-intentioned, and most are appropriate, some raise concerns over privacy or require questionably low evidentiary standards.
Defending against a prosecution for a meth-related crime is an uphill climb due to both the laws and the stigma that attaches to such charges.
ALEC Press Release, ALEC Urges Caution on the Combat Meth Act (22 June 2005).
Gig Conaughton, Meth Problem Growing for Women, Children, Supes Told, North County Times, 20 October 2004.
John Hall, Three Sentenced in Meth Lab Case, North County Times, 4 February 2005.
National Drug Intelligence Center (N.D.I.C.), California Central District Drug Threat Assessment: Methamphetamine, May 2001.
Feinstein Press Release, Talent-Feinstein Bill Would Limit Access to Key Ingredient Used to Make Meth (26 January 2005).
Stephanie Ramos and Hector Becerra, Buying Cold Pills? Fill Out This Form, Los Angeles Times, 29 June 2005, at A27.
Lee Rood, California Scarred by Meth Combat, Des Moines Register, 24 November 2003.
Susannah Rosenblatt and Stephanie Ramos, Meth Measure Wouldnt Burden Shoppers, Los Angeles Times, 30 June 2005, at B10.