Do Overbroad Drug Laws Ensnare Law-Abiding Allergy Sufferers?

Federal and state drug laws do not just target controlled substances themselves, such as marijuana. They also criminalize possession or distribution of certain amounts of “precursor” materials used in the production of synthetic drugs like methamphetamine. Pseudoephedrine, a precursor for methamphetamine, is classified as a controlled substance, and is also an ingredient in many cold and allergy medicines. As a result, people who merely suffer from severe allergies may find themselves the subject of drug charges.

A criminal case in Iowa illustrates the problem for allergy sufferers who may inadvertently violate complicated legal restrictions on otherwise-legal medications. A woman with no history of drug use or drug-related arrests now faces charges for conspiracy to manufacture, deliver, or possess a methamphetamine-related substance with the intent to distribute it. Prosecutors, based on an investigation by the Southeast Iowa Inter-Agency Drug Task Force, claim that she was involved in methamphetamine ring from August 2010 through October 2012. Several other people have also been identified as possible co-conspirators. The woman claims that she never purchased more than the legal limit of pseudoephedrine-containing medications, and that every purchase was for the treatment of her own allergies.

Most states have enacted tougher restrictions on pseudoephedrine because of a practice known as “smurfing,” in which multiple people purchase small amounts of pseudoephedrine-containing drugs for use in large-scale methamphetamine cooking. Larger purchases would typically arouse suspicions, so methamphetamine producers would make multiple purchases at multiple pharmacies. Iowa was one of the first states to attempt to crack down on smurfing, enacting a law in 2005 that made pseudoephedrine a controlled substance and put it behind the pharmacist’s counter. In 2010, the state joined a national database, the National Precursor Log Exchange (NPLEx), which allows law enforcement around the country to share data on pseudoephedrine purchases. Iowa consumers may not purchase more than 3,600 milligrams of pseudoephedrine, or more than one package of a pseudoephedrine-containing product, in any twenty-four hour period. They may not purchase more than 7,500 milligrams in any thirty-day period.

Police in Iowa based their arrest of the woman, according to the Des Moines Register, on a review of NPLEx data. Information obtained from police reportedly shows that the woman purchased thirty-two packages of allergy medicine, which contained roughly 1,440 milligrams of pseudoephedrine, in the twenty-six-month period between 2010 and 2012. This is far below the legal limit set by state law. The Register reported, however, that investigators testified that she purchased 90.24 grams, or ninety thousand milligrams, which could yield over eighty-three grams of methamphetamine. Even that amount would be below the legal limit of 7,500 milligrams per month over twenty-six months. Prosecutors are apparently claiming that other participants in the alleged conspiracy were also purchasing large amounts of pseudoephedrine at the same time, which would contribute to a large total amount.

These laws, of which similar ones are on the books in Texas, say very little about a suspect’s intent. The mere purchase of a large quantity of allergy medicine is sufficient for a prosecution. Even a supposedly clear-cut case of “smurfing,” such as the recent case of a Texas man sentenced to over six years in prison for fifteen purchases of cold medicine from two Lufkin pharmacies over a twelve-month period, could still allow the prosecution of someone who purchased cold medicine for themselves and for family members.

Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To schedule a confidential consultation to discuss your legal matter, contact us online or at (432) 687-5157.

More Blog Posts:

East Texas Town Seizes Large Amounts of Marijuana in Traffic Stops, Texas Criminal Lawyer Blog, January 1, 2013
Texas Jury Convicts Puerto Rican Man of Trafficking Counterfeit Prescription Drugs through the Mail, Texas Criminal Lawyer Blog, June 28, 2012
Houston Grandmother Given a Life Sentence For Allegedly Conspiring to Smuggle Drugs, Texas Criminal Lawyer Blog, May 14, 2012

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