Sunday, September 04, 2005

Enough Meth To Get Half Of Smith County High?

I don't know how I missed this, but Grits for Breakfast alerts us to a story where the government claimed a couple possessed enough meth to get half of Smith County high:

A DEA agent testified at trial that 255 grams was enough to get 45,000 people "high" -- "If those people were lined up side by side, they would form a line from downtown Tyler to Bullard about 17 miles, he said."

Local media dutifully hyped the ridiculous claim. The lede in the local newspaper declared the couple was sentenced "for possessing enough Ice methamphetamine to get half of the population of Smith County high."

But is that true? That would mean that it only took .0056 of a gram -- or just over five one-thousandths of a gram -- for a person to get high on meth. By any measure, that's a big fat lie.

Although I don't want to minimize the terrible nature of this story--life inprisonment for drug possession is always extreme unless you're selling it to 12-year-olds on a school campus (and are a teacher)--but Scott's entry has made me re-think the "usable quantity" concept with regard to drug possession.

Drugs in Texas are dealth with by law in essentially two different catergories: marijuana and everything else. Possession and delivery of marijuana is covered in the Texas Penal Code. Everything else falls under the Texas Controlled Substances Act codified in the Texas Health and Safety Code. Subsequently, the HSC has various penalty groups, one two and three, etc.

However, the requirement that someone must possess a "usable quantity" of a particular drug in order to commit an offense applies only to marijuana offenses.

The Court of Criminal Appeals has concluded marijuana must be possessed in usable amouns as far back as the late 1950s, with Greer vs. State and Pelham vs. State. In Pelham (
164 Tex. Crim. 226; 298 S.W.2d 171; 1957 Tex. Crim. App. LEXIS 2075), the Court noted:

The legislature has not prescribed or limited, by statute, the amount of marijuana necessary to be possessed in order to constitute the unlawful act of possession of marijuana.

We know that the use commonly made of marijuana is to smoke it in cigarettes; it is not taken internally or by hypodermic, as are other narcotics. Such being true, we have concluded that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the unlawful act of possessing marijuana there must be possessed an amount sufficient to be applied to the use commonly made thereof. In other words, unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute.

While this application with regard to marijuana makes some sense, as it's pretty easy to argue that one seed in the floorboard of a car or a couple random bits of pot aren't immediately usable (and, I think the courts have dealt with the issue of usability regarding seeds before) what does not make sense is that basically any quantity of other substances, i.e., heroin, cocaine, meth, is deemed "usable."

So, why haven't Texas courts done anything with regard to 'usability' with relation to other substances? (And, if they have, I missed it.) I mean, how many cases are out there where defendants have possessed syringes of meth or heroin which may not actually constitute usable quantities? The lab reports usually just show that the substances "contain" the narcotic. When you think about it, such a change could reak serious havoc for the system if it were taken far enough.

For example: the purpose of a controlled substance is to create some reaction within the body, ie to make a person high. A lot of factors determine how 'high' you get: body weight, tolerance, previous use history, quantity, etc. For example, it would theoretically take a lot more meth to get a 300 lb man high than a 120 lb 18-year-old high school student. Sure, the 300 lb man can use a small amount of meth, but does it do any good?

Of course, there is no chance in hell the courts would ever allow such defenses to be put forth. The way DWI cases are handled is an excellent example, because you may either have a .08 BAC or simply exhibit impairment to be charged.