Prosecution of Rx Drug Violations

Consider this scenario: You are dispatched to a ‘loud party.’ At a residence you find several young people inside and outside. A few scatter, but some are too intoxicated to move. On investigation, you find one partier was giving out some small, white, round pills with “AN 627” embossed on them. The immobile/passed out youths had reportedly crushed and sniffed these pills. Using your ‘smart phone’ you learn these are the prescription drug Tramadol Hydrochloride.* Tramadol is not listed as either a federal or New Mexico scheduled drug; that is, not a “controlled substance” per 30-31 NMSA.

Q1. Related to the possession, distribution or use of Tramadol, do you have a New Mexico crime?
A1. YES YOU HAVE A CRIME! IN FACT, SEVERAL FELONIES!

Q2. What is/are the applicable statute(s)?
A2. These are found in Article 1 of Chapter 26 … an entry NOT contained in the NM C&T Law Manual.

((JCT Note: The New Mexico Compilation Commission advises publishers such as LexisNexis and Conway Greene on what materials to put in the NM law manual. Thus the omission of 26-1 NMSA should be credited to that group, not the publishers of the manual.))

Here are the operative passages:

26-1-2.F. A “‘dangerous drug’ means a drug, other than a controlled substance enumerated in Schedule I of the Controlled Substances Act [30-31-6 NMSA1978], that [must be dispensed by prescription.]”

26-1-16.A. & B. “It is unlawful for any person to sell, dispose of or possess any dangerous drugs, except: (1) manufacturers, wholesalers or distributors [etc.], (2) distributors, wholesalers, hospitals, [etc., and] B. Practitioners licensed in this state [….]”

26-1-26.A. “Any person who knowingly violates any of the provisions of Section [ … ] 26-1-16 [ … ] is guilty of a fourth degree felony [ ….]”

Tramadol is only one of many diverted and abused prescription drugs that are not “controlled substances.” Their abuse is a crime that is also a public safety issue.

From a case prosecution perspective, both in theory and practice, all valid charges should be filed. Consider this counsel from the New Mexico Supreme Court:

“We find nothing in the double jeopardy clause, the New Mexico statutes, or prior case law which would prohibit the State from charging and trying [an accused] for violations of every criminal statute which the State has sufficient grounds to believe he has violated.” State v. Ellenberger, 96 N.M. 287, 290 (NMSC 1981).

As a practical matter relevance is two-fold: (1) more charges => more plea bargaining leverage; (2) if evidence for crime A is suppressed, the evidence for crime B may survive.

Now, for the good news, at the request of the of the New Mexico Rangers training division, LexisNexis has agreed to make Chapter 26, Article 1 of New Mexico statutes available for free. Two links are needed:

The first link is:
http://Subj: Prosecution of Prescription Drug Violations.

The second linkis:
http://www.lexisnexis.com/em/img/162530/NewMexicoCTS.pdf?access=1-3366999947&treatcd=1-4575137841/

Summary.

Not all drug crimes involve Articles 31, 31A and 31B of Chapter 30 (Criminal Offenses). In particular, prescription drug offenses are at Article 1 of Chapter 26. That Article is not in the New Mexico Criminal and Traffic Law Manual, but these crimes should not be ignored. As a public safety measure 26-1 NMSA is now available, gratis, via LexisNexis.

Credits.

The New Mexico Rangers wish to express our appreciation to Mr. Stephen Martin, Director of LexisNexis Criminal Law Publications, for his assistance in getting Article 1 of Chapter 26 “on the street.”

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*Fun Facts for Tramadol

Tramadol (Ultram®, Ultracet®, Ryzolt™) is a prescription drug. It is narcotic-like pain reliever used to treat moderate to severe pain. It is also reported to be addictive, but it is not listed on the Fed Gov’t’s or NM controlled substances schedules. ((It is controlled in NY & TX and maybe other states.))

Is it a problem drug? Apparently so: Tramadol can produce a morphine- or heroin-like high, and according to public health officials, it’s in the running to compete with OxyContin addiction.† David Cota, DEA Agent told me about Tramadol; as the novus site indicates, it’s becoming more popular as an alternative of Oxycodone.

Although it’s not a traditional street opioid like heroin or morphine, tramadol can produce a euphoria comparable to heroin, even at a single dose of 75 mg. And many recreational users claim it doesn’t come with the cognitive impairment of OxyContin and other opioids. Using this medicine by inhalation or injection can cause life-threatening side effects, overdose, or death.

But there’s another, more dangerous aspect to tramadol: it also comes in a time-release version, called Ultram ER®(Extended Release) 100mg-300mg, which abusers are now defeating and ingesting all at once—the best formula for rapid addiction and sudden death.

† http://www.novusdetox.com/oxycontin-tramadol-addiction-abuse.php

CAVEAT LECTOR: These materials have been prepared for educational, andragogic, and informational purposes only. They are not legal advice or legal opinions on any specific matters. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between the author and you. Any views expressed in this introduction and the summaries are those of the author alone and do not express the views of the any New Mexico authority or law enforcement agency. No person should act or fail to act on any legal matter based solely on the contents of these materials. Anyone finding fault with the representations of this analysis is urged to promptly notify me for appropriate corrections.