Drug ingredients law ruled unconstitutional | NevadaAppeal.com

Drug ingredients law ruled unconstitutional

Geoff Dornan, Appeal Capitol Bureau

The Nevada Supreme Court has ruled unconstitutional a law criminalizing possession of “a majority of the ingredients” needed to make a controlled substance.

Two cases centered on attempts by Washoe County’s Consolidated Narcotics Unit to build cases against alleged methamphetamine makers.

Kit and Alice Burdg were arrested in August 2000 in Sun Valley after police detectives found a variety of items on their property including flasks, funnels, scales, coffee filters, matches, ephedrine tablets, hydrogen peroxide, acetone and bottles of Red Devil lye. A test of white powder was positive for pseudophedrine — a decongestant used to make methamphetamine.

In September 2000, the narcotics unit arrested Stephen Santillanez and Larry Shawn Early after finding iodine, ephedrine, pseudophedrine, red phosphorus and hydrochloric acid on their property, as well as some methamphetamine.

In both cases, the charges were possession of a majority of the ingredients needed to manufacture a controlled substance, methamphetamine. That was made a violation of Nevada law several years ago but District Judge Jim Hardesty agreed with defense lawyers the law was unconstitutionally vague and dismissed the cases.

Experts said key ingredients needed to make methamphetamine are: psdueophedrine, an over-the-counter decongestant; iodine, a common disinfectant for cuts; and red phosphorus, the primary ingredient in matches. All are common items found in many homes.

Washoe County District Attorneys appealed arguing the law should be upheld but the Supreme court agreed with Hardesty.

The court, in an opinion issued Friday, concluded that NRS 453.322 “is facially vague because it infringes on constitutionally protected conduct, is incapable of any valid applications, fails to provide sufficient notice of the prohibited conduct and encourages arbitrary and discriminatory enforcement.”

The high court also said the statute contains no requirement police prove intent and, therefore, imposes criminal sanctions on what is otherwise a non-criminal activity.

“The statute at issue is missing not only the intent to possess a majority of the ingredients required to manufacture but, more significantly, the intent to possess those ingredients for the purpose of manufacturing a controlled substance.”

The high court ruled that, with no intent requirement, the open-ended and vague law was an invitation to arbitrary and discriminatory enforcement and, therefore, unconstitutional.