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The Crackdown on “Designer Drugs”

The Internet and other technology has been incredibly useful for educating those in many knowledge-based pursuits. More people are finding access to education and learning skill-sets that in the past would have been too expensive or inaccessible to them. The problem comes when this access provides those with bad intentions the opportunity to use chemistry kits and online lessons to learn how to concoct, distribute, and sell dangerous substances within the local community.

“Designer Drugs”: What are They?

Many have become inspired by the television show “Breaking Bad” to use home chemistry sets to create and sell substances that are similar in makeup to controlled drugs currently on the federal controlled substances list. Some are taking this a step further and concocting their own substances, using legal materials, to skirt the law and make a profit off of drugs that perform similarly to their illegal, controlled counterparts. These are known as “designer drugs,” and have been receiving a significant amount of success on the streets, especially due in part to the legal nature of the components, making it fairly easy to produce large quantities of the “designer drug”.

“Designer Drugs” in Florida

Florida has attempted to keep pace with the designer drug movement by continually adding to the controlled substance list (and sorting the drugs by their schedules), detailing which drugs are outlawed because of their illicit nature and their tendency to be analogous to a drug already restricted on the federal, controlled substance list. However, because many of these drugs are made with legal materials, Florida and the rest of the United States have attempted to discern which substances should be banned, and which of these substances the creators have the right to create.

The Supreme Court Will Tackle Scienter in “Designer Drugs”

The Supreme Court has decided to tackle this issue, especially because the circuit courts have been split on whether a scienter requirement should be present when convicting creators of “designer drugs” who create substances that are analogous to drugs that are banned on the controlled substance schedule list.

What is “Scienter”?

Scienter is legal term to refer to knowledge that a criminal defendant has regarding his actions. In this case, it would be whether the government must prove that the creator of the designer drug knew or should have known that the drug he/she created was similar to a drug on the controlled substance schedule list.

Split Between the Circuit Courts

The majority of circuit courts believe that the government must determine that the creator knew of the analogous nature of the drug that he/she created, whereas the minority of circuit courts do not require it, and believe that creation and distribution of a drug that happens to be similar to controlled substance is in of itself enough to convict. Without this mens rea requirement, an innocent chemistry act could lead to a serious conviction.

Florida’s Scienter Requirement

Florida is silent as to the scienter requirement for its designer drug statute. It does permit a defendant to use as an affirmative defense any evidentiary showing that he/she lacked the knowledge that the designer drug created was illicit in nature. But this is different from whether he/she knew that he/she created a designer drug that is analogous to a drug banned as a controlled substance. Though the distinction is slight, the ruling of the Supreme Court could change the current law in Florida, and send more defendants to jail whose innocent act led to a criminal conviction.

Experienced Criminal Defense Attorney in Fort Lauderdale

The federal and state drug laws have serious consequences and it is important to speak immediately with an experienced criminal defense attorney like Kevin J. Kulik as soon as you have been arrested for these types of crimes. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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