Manufacturers of synthetic marijuana (widely referred to as “Spice”) have responded to recent state and Federal laws criminalizing the use and possession of the herb by slightly altering the chemical compounds involved in the manufacturing process to avoid using the banned substances. The manufacturing process entails spraying synthetic compounds on herbs that mimic the active ingredient in marijuana. Recent media reports, including this article in the Washington Post, detail the problems now faced by lawmakers and prosecutors as chemists tinker with the formulas used to create the substance. The article reports that Virginia’s forensic lab recently tested over 400 samples, only 100 of which contained banned compounds. Other reports indicate that new versions of the herbal products are returning to store shelves under various trade names and brands.
The alteration of the chemical compounds presents challenges to criminal prosecutors who must prove that the substance actually contains one of the banned ingredients. Nearly all of the states and the Federal government have some ban on chemicals used in the substances. The Federal government is seeking to add to the number of chemical structures that would be illegal.
The military generally has a broader prohibition on the use of such substances as service regulations prohibit the use of any controlled substance “analogues” such as designer drugs, natural substances, or chemicals, that is used with the intent to induce “excitement, intoxication and stupefaction of the central nervous system.” Before the chemical compounds used in Spice were listed as controlled substances under the Federal Controlled Substances Act, such cases were usually prosecuted as an orders violation under U.C.M.J. Article 92. As a result of the alteration of the compounds, the military may well go back to charging this offense as an orders violation to avoid the necessity of proving the specific compound in a particular sample included one of the banned compounds.
If you are being investigated or have been charged with using or possessing an illegal drug, you should consult with an experienced criminal defense attorney to discuss the particular facts of your case.