Many counties are authorizing police agencies to arrest smoke-shop owners and others for selling an Incense known as SPICE claiming that such can make a person high. For example, the Herald Journal in Logan, Utah, recently reported a story where undercover police came in and tried to get the smoke-shop owner to admit the SPICE he was selling to them was for getting high. The shop owner denied that the chemicals were for inhalation. According to the shop owner, two undercover officers entered Timberline’s south Main Street location. They asked the clerk about the affects of spice. The clerk said the product was not for human consumption, that it was an incense. The officers bought some spice and left. They returned about three hours later and said the spice they purchased wasn’t as strong as they had hoped and asked if there was anything stronger. The clerk said yes. Around this time, an officer said something like, “I’m going to get high tonight.” The clerk sold the officers a different brand of spice that he said he liked better. The officers then identified themselves and drove the clerk to a hotel parking lot where they cited and released him. See the full SPICE drug story.
Many people are being prosecuted for this throughout the state. But is it unfair to target individuals in possession of this incense? Utah Code, section 76-10-107, states:
Abuse of psychotoxic chemical solvents.
(1) A person is guilty of abuse of psychotoxic chemical solvents if:
(a) for the purpose of causing a condition of intoxication, inebriation, excitement, stupefaction, or the dulling of his brain or nervous system, he intentionally:
(i) smells or inhales the fumes of any psychotoxic chemical solvent; or
(ii) possesses, purchases, or attempts to possess or purchase any psychotoxic chemical solvent; or
(b) the person offers, sells, or provides a psychotoxic chemical solvent to another person, knowing that other person or a third party intends to possess or use that psychotoxic chemical solvent in violation of Subsection (1)(a).
(2) This section does not apply to the prescribed use, distribution, or sale of those substances for medical or dental purposes.
(3) Abuse of psychotoxic chemical solvents is a class B misdemeanor.
(4) As used in this section, psychotoxic chemical solvent includes any glue, cement, or other substance containing one or more of the following chemical compounds: acetone and acetate, amyl nitrite or amyl nitrate or their isomers, benzene, butyl alcohol, butyl nitrite, butyl nitrate, or their isomers, ethyl alcohol, ethyl nitrite or ethyl nitrate, ethylene dichloride, isobutyl alcohol, methyl alcohol, methyl ethyl ketone, n-propyl alcohol, pentachlorophenol, petroleum ether, propyl nitrite or propyl nitrate or their isomers, toluene or xylene, or other chemical substance capable of causing a condition of intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system as a result of the inhalation of the fumes or vapors of such chemical substance. Nothing in this section shall be construed to include any controlled substance regulated by the provisions of Title 58, Chapter 37, Utah Controlled Substances Act.
The question becomes whether the smoke shop owner knows that the person he is selling the chemicals (spice) to are doing it in order to become become intoxicated, inebriated, etc. Obviously, if the smoke-shop owner tells someone that the spice can get them high and it is the best stuff to do that, the state will have enough to convict the shop owner. On the other hand, a shop owner that sells these chemicals and has had no conversation with the purchaser should not be held liable for selling a chemical that has a legitimate and lawful use: i.e. used as incense.
Another article recently written out of New Jersey reports that SPICE is an incense and may or may not even contain the ingredients to properly classify it as a controlled substance.
According to this article, some SPICE contains a substance that, when ingested, can cause one to become high. But some SPICE does not even contain this. So another issue is that the SPICE in question may not even contain the harmful substance that would result in one becoming high. And even if it did, the prosecutor would have to prove that the shop-owner knew the customer was using it to ingest, inhail, etc. Prosecutors believe that shop-owners “know exactly what they are doing”, as this article indicates, and assume they are just selling it for illegal purposes because the drug can have that affect. I believe this approach is cynical towards the human race: it assumes that someone is guilty instead of presuming they are innocent.
In sum, many individuals throughout Utah and this country are being targeted for possession of the incense known as “Spice.” Some of this Spice may have ingredients in the Controlled Substance, Category I classification, making possession akin to heroin, which could land a person in the slammer as a felon for up to five years, or even up to fifteen years if they charge it within a drug free zone, which is virtually most places within the city limits. And the penalty could be even as high as a first degree felony if they charge you with possession with intent to distribute, which carries with it a prison sentence of 5 years to life!
If you have been charged with this contact Utah criminal defense attorney, Sean Druyon, immediately in order to begin preparing to have these charges dismissed. You should be presumed INNOCENT until proven GUILTY. And until the legislature specifically enumerates SPICE as a controlled substance, possessors of this incense should not have their constitutional rights trampled on by being presumed guilty. I have represented hundreds of similar drug cases over the years and will aggressively fight to ensure your rights, like the right to the presumption of innocence, are not pushed aside.