In response to the
growing number of criminal incidents involving individuals under the influence
of bath salts, both Houses of Congress passed S.3187, which President Obama signed off on shortly thereafter in July 2012. Subtitle
D specifically places a federal ban on the use, possession, or manufacturing
of synthetic drugs, that up until recently were sold legally in stores.
The compounds mephedrone and methylenedioxypyrovalerone (MDPV) –
both contained in what are commonly known as bath salts – were two
of the roughly thirty known compounds newly classified under Schedule
I of the Controlled Substances Act. In addition, the law bans other compounds
that could potentially be produced in the future, or have been created,
but are not currently being used by manufacturers.
Are bath salts illegal in New York State?
Yes, although bath salts were once legally sold in stores, this is no longer
Gov. Cuomo recently passed legislation adding the ingredients found in
bath salts to Schedule I of the Public Health Law. Under New York state law, there are five Schedules of controlled substances
(contained in Public Health Law § 3306), and all of the controlled
substances listed therein are illegal to possess without a prescription.
Some of the typical ingredients used in bath salts now fall under Schedule
I, with methylendioxypyrovalerone (MDPV) being one ingredient in particular
and mephedrone being another. Notably, even if the ingredient used is
not expressly listed in the Public Health Law under § 3306, under
§ 3306(a) it states that: “Schedule I shall consist of the
drugs and other substances, by whatever official name, common or usual
name, chemical name, or brand name, listed in this section.” Moreover,
someone who unlawfully possesses a controlled substance in New York is
probably subject to prosecution for some violation of Penal Law Chapter
220. Thus, a possessor of a controlled substance containing a banned ingredient
cannot avoid criminal prosecution by claiming that the “street name”
of his contraband is not specifically mentioned in the Public Health Law.
I was found in possession of bath salts and arrested – what are the
potential consequences for me?
That depends on several factors, most important of which are your criminal
record and the quantity of bath salts you possessed at the time of your
arrest. The least serious charge is Criminal Possession of a Controlled
Substance in the Seventh Degree (Penal Law Section 220.03), a class A
misdemeanor punishable by up to one year in prison, that can be applied
to any quantity of bath salts. More serious felony charges can also apply
depending on the aggregate weight of the substance.
What happens if I allegedly had intent to sell a controlled substance?
In those cases, you are likely to be charged with a felony. Follow
this link for more on this topic. Moreover, New York state has recently enacted legislation that
allows prosecutors to pursue cases (with civil penalties and fines) against
retail establishments that sell the chemical precursors commonly used
to make bath salts.
Drug charges and convictions can lead to prison sentences and significant
career consequences. Accordingly, if you or a loved one have been arrested
or issued a Desk Appearance Ticket (DAT) for possessing or selling bath
salts in New York City, it is essential that you speak to an
experienced criminal defense attorney immediately.
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Public Health Law,
Public Health Law 3306,