Bath Salt Users—Analogous Drug Act Alert

Drug Test Alert.  Contact RaquinMercer if you are charged with knowingly possessing, distributing, or PWID, of an “analogue” CDS alleged to be “substantially similar” in chemical structure and effect to a scheduled CDS.  The Supreme Court in McFadden v. United States answered the question whether a person charged with possessing an analogue CDS must “know” of its illegal character.  Courts have widely interpreted the model code for CDS possession, distribution, or PWID (which Maryland’s CDS laws are based on) to require the prosecution prove a defendant knew of the illicit character of a substance as an element of possession.  Under the model act however, an analogue substance is treated as though it is a CDS.  So how would a person know, for example, of the illicit character of a box of bath salts purchased at the corner store?  In a particular case, a jury decides whether a nonscheduled substance, like bath salts, is “substantially similar” to the chemical structure and effects of a scheduled CDS, thus making it an “analogue” substance that is treated as CDS.  But because scientists do not agree on the metrics to determine when the chemical structure or effect of a substance is “substantially similar” to a scheduled CDS, how can a reasonable person conform his conduct to the dictates of the law?  Is it enough for the government to show the person intends to consume a nonscheduled substance because he thinks it will get him high?  (I hope caffeine is not substantially similar in its chemical structure and effect to constitute an analogue to amphetamine!)  What if the person believes the urban myth of putting nutmeg in his milk to get stoned?  Or perhaps taking cold medicine makes you woozy — watch out, that could be an analogue for MDMA.  Caught in the horns of such a dilemma, should the mythical reasonable person consult with Cheech and Chong before purchasing any nonscheduled substance intended for human consumption that has a perceived effect on the taker?  Fortunately the Court rejected the government’s proposal to impose the mental state of the alleged thinking he is in possession of an analogue to a scheduled CDS.  Given the scientific disagreement over what constitutes a “substantially similar” chemical structure, would it be a defense that an objectively reasonable person would conclude that a substance is not an analogue, whatever a person subjectively intended to use it for?  There are many innocent substances that are just a mere one or two atoms away from a scheduled CDS.