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An offense under Subsection is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams. An offense under Subsection is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. An offense under Subsection is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams. Send all required information, including any information required to complete an official prescription form, to the board by electronic transfer or another form approved by the board not later than the next business day after the date the prescription is completely filled. Not later than the 30th day after the date a practitioner’s Federal Drug Enforcement Administration number or license to practice has been denied, suspended, canceled, surrendered, or revoked, the practitioner shall return to the board all official prescription forms in the practitioner’s possession that have not been used for prescriptions.
“Controlled substance plant” means a species of plant from which a controlled substance listed in Schedule I or II may be derived. If a judgment of guilt is reversed, set aside, or vacated and a new trial is ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecution official at the time the first prosecution began. It is an affirmative defense to liability under this section that the synthetic substance produced, distributed, sold, or provided was approved for use, sale, or distribution by the United States Food and Drug Administration or other state or federal regulatory agency with authority to approve a substance for use, sale, or distribution. A person who is found liable under this section or other law for any amount of damages arising from the consumption or ingestion by another of a synthetic substance is jointly and severally liable with any other person for the entire amount of damages awarded. This section does not affect the right of a person to bring a common law cause of action against an individual whose consumption or ingestion of a synthetic cannabinoid resulted in causing the person bringing the suit to suffer personal injury or property damage.
By an officer or investigator authorized to enforce this chapter within the scope of the officer’s or investigator’s official duties. If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both. Refuses or fails to maintain security required by this chapter or a rule adopted under this chapter. Tampers with equipment that is manufactured or used to hold, apply, or transport anhydrous ammonia without the express consent of the owner of the equipment. If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. To the extent Subsection conflicts with another provision of this subtitle or another law, the other provision or the other law prevails.
Possession of Analog / Analogue Drugs
This case was in the eighth judicial circuit and was centered around whether 1,4-butanediol (1,4-B) was similar enough to the controlled substance gamma-hydroxybutyrate to qualify as an analogue. Finally, the court ruled that AET does not have substantially similar psychoactive effects to DMT to be classified as a DMT analogue. As a result, some comparisons are made in a legal setting based on the effect profile, while others are predominantly based on the chemical structure of the compounds being compared. Most of it stems from a debate about what qualifies a drug as similar enough to an illegal drug. Lawyers and laypeople alike should easily interpret laws in the United States, making phrasing like “sufficiently similar” arguably too vague.
- However, a few of them have been added to the list of controlled substances, which then enabled all of their direct analogs to become illegal as well.
- An offense under Subsection is a Class A misdemeanor, unless it is shown on the trial of a defendant that the defendant has previously been convicted under Subsection or , in which event the offense is punishable by confinement in jail for a term of not more than one year or less than 90 days.
- Is specifically designed to produce an effect substantially similar to, or greater than, a controlled substance listed in the applicable penalty group.
A district attorney of the county where the act occurred may file suit in district court in that county to collect a civil penalty under this section, or the district attorney of Travis County or the attorney general may file suit in district court in Travis County to collect the penalty. If a person commits an act that would otherwise be an offense under Subsection except that it was committed without the requisite culpable mental state, the person is liable to the state for a civil penalty of not more than $1,000 for each act. An offense under Subsection is a Class A misdemeanor, unless it is shown on the trial of a defendant that the defendant has previously been convicted under Subsection or , in which event the offense is punishable by confinement in jail for a term of not more than one year or less than 90 days. For the purposes of this section, Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355) applies to the introduction or delivery for introduction of any new drug into intrastate, interstate, or foreign commerce. Aided in the production, distribution, sale, or provision of the synthetic substance to the minor.
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However, a few of them have been added to the list of controlled substances, which then enabled all of their direct analogs to become illegal as well. This includes compounds such as JWH-007, JWH-018, JWH-073, JWH-200, JWH-398, AM-1221, AM-2201, AM-694, and WIN-55,212-2. The law was passed in 1986 as a response to “designer drugs,” which are handcrafted substances made to mimic illegal drugs in order to circumvent bans. 232, considered the question of whether the drug alphaethyltryptamine was a controlled substance analogue in the USA.
Dissemination by the board to the public in the form of a statistical tabulation or report if all information reasonably likely to reveal the identity of each patient, practitioner, or other person who is a subject of the information has been removed. “Ultimate user” means a person who has lawfully obtained and possesses a controlled substance for the person’s own use, for the use of a member of the person’s household, or for administering to an animal owned by the person or by a member of the person’s household. “Pharmacy” means a facility licensed by the Texas State Board of Pharmacy where a prescription for a controlled substance is received or processed in accordance with state or federal law.
Analog drugs or analogue drugs are generally synthetic substances, which means the substances are manufactured rather than occurring naturally in plant form. Some synthetic drugs are produced to create the same chemical reactions or to have the same effects as substances on the state or federal controlled substance list. When a designer drug is substantially similar to a controlled substance, a defendant could be charged for possession of analog or analogue drugs, even if the particular substance in his possession is not actually on the controlled substances list. A prescription for a Schedule II controlled substance for a patient in a long-term care facility or for a hospice patient with a medical diagnosis documenting a terminal illness may be filled in partial quantities to include individual dosage units. If there is any question about whether a hospice patient may be classified as having a terminal illness, the pharmacist must contact the practitioner before partially filling the prescription.
Federal Analogue Act
Therefore, it is critical that your Lincoln drug analog defense lawyer has both state and federal drug defense experience. By working with an experienced drug lawyer with this experience, you can give yourself the best chance of a positive outcome. In so holding, the Court interpreted and applied the Supreme Court’s recent decision in McFadden v. United States, 135 S. Ct. 2298 , in which the Court held that “the Government must prove that a defendant knew that the substance with which he was dealing was a ‘controlled substance,’ even in prosecutions involving an analogue.” 135 S. A major flaw in the Federal Analog Act is the lack of any definition of what “substantially similar” means in regards to a controlled drug. The Federal Analog Act, 21|813, is a controversial section of the United States Controlled Substances Act, allowing any chemical “substantially similar” to an illegal drug to be treated as if it were also in Schedule I, but only if it is intended for human consumption.
When charged with possession of analog or analogue drugs, you need an experienced NY designer drug defense lawyer to advocate for you. Cases related to designer drugs can be complicated because you may wish to argue that the substance is not actually an analogue and is thus not illegal under state or federal controlled substances laws. An attorney with familiarity of the science behind drug manufacture can be an invaluable ally.
A dispensing pharmacist who receives a controlled substance prescription in a manner other than electronically is not required to verify that the prescription is exempt from the requirement that it be submitted electronically. The pharmacist may dispense a controlled substance pursuant to an otherwise valid written, oral, or telephonically communicated prescription consistent with the requirements of this subchapter. Except as specified in Subsections and , the board, by rule and in consultation with the Texas Medical Board, shall establish the period after the date on which the prescription is issued that a person may fill a prescription for a controlled substance listed in Schedule II. A person may not refill a prescription for a substance listed in Schedule II.
Federal Analog Act
In 2016, the Senate passed a “package of bills” aimed at criminalizing possession, manufacture, and sale of synthetic drugs. The goal of the bills was to eradicate the sale of K2, Alpha-PVP, synthetic cannabinoids, and a variety of other designer drugs. Many analogue drugs — like bath salts and K2 — are entirely illegal because they don’t have an officially recognized medical use. Much of the confusion about the signs of a functioning alcoholic comes from interpreting the word “analogue.” According to the law, an analogue of an illegal drug is one that has a similar chemical structure and function. Quantifying chemical and functional similarity is impossible, leaving it open to interpretation of how similar a designer drug needs to be to fall under the act’s control.
Case Law
The little-known law to fight this practice was written poorly, and as a result has been interpreted very broadly by American law enforcement. However, a Supreme Court decision last week, McFadden vs. US, narrowed the scope of the Federal Analogue Act, and closed off one of the worst facets of law enforcement’s interpretation. Bukh Law Firm, PLLC has extensive experience representing clients facing analogue drug possession charges.
U.S. Code § 813 – Treatment of controlled substance analogues
The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty or to give a supersedeas bond. In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, the person is presumed not to be the holder of the registration or form. The presumption is subject to rebuttal by a person charged with an offense under this chapter.
If the board provides access to information under Subsection relating to a person licensed or regulated by an agency listed in Subsection , the board shall notify that agency of the disclosure of the information not later than the 10th working day after the date the information is disclosed. The board shall remove from the information retrieval system, destroy, and make irretrievable the record of the identity of a patient binge drinking alcohol, black tar colored stools, blank stare and bleeding submitted under this section to the board not later than the end of the 36th calendar month after the month in which the identity is entered into the system. However, the board may retain a patient identity that is necessary for use in a specific ongoing investigation conducted in accordance with this section until the 30th day after the end of the month in which the necessity for retention of the identity ends.
On publication of an objection by the commissioner, control as to that particular substance under this chapter is stayed until the commissioner publishes the commissioner’s decision. Whether the substance is a controlled substance analogue, chemical precursor, or an immediate precursor of a substance controlled under this chapter. The director by rule shall prohibit a person in this state, including a person regulated by the Texas Department of Insurance under the Insurance Code or the other insurance laws of this state, from using a practitioner’s Federal Drug Enforcement Administration number for a purpose other than a purpose described by federal law or by this chapter. The loopholes come down to whether or not someone can convince a judge that the compound they’re selling is different enough from compounds listed on the controlled substances act. If it’s different enough that it can’t reasonably be considered an analog drug, it could be considered legal by proxy.
The defense to prosecution provided by Subsection does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection is not available. The provisions of this chapter relating to the possession of denatured sodium pentobarbital do not apply to possession by personnel of a humane society or an animal control agency for the purpose of destroying injured, sick, homeless, or unwanted animals if the humane society or animal control agency is registered with the Federal Drug Enforcement Administration. The provisions of this chapter relating to the distribution of denatured sodium pentobarbital do not apply to a person registered as required by Subchapter C, who is distributing the substance for that purpose to a humane society or an animal how drugs affect the brain control agency registered with the Federal Drug Enforcement Administration. (b-1) If the director names a chemical substance as a chemical precursor for purposes of Subsection or designates a substance as an immediate precursor, a substance that is a precursor of the chemical precursor or the immediate precursor is not subject to control solely because it is a precursor of the chemical precursor or the immediate precursor. A veterinarian authorized to access information under Subsection regarding a controlled substance may access the information for prescriptions dispensed only for the animals of an owner and may not consider the personal prescription history of the owner. A dispenser is not subject to criminal, civil, or administrative penalties for dispensing or refusing to dispense a controlled substance under a prescription that exceeds the limits provided by Subsection .