The Rise of Flakka: Criminal Defenses for Flakka and other Synthetic Drug Charges

Four defenses used to challenge flakka and other synthetic drug charges in Arizona; laws, penalties; and what you need to know about Flakka. 

Each day we are learning more about the deadly effects of the new street drug “flakka” – a drug described as being so dangerous, that even dealers and those suffering from drug addictions are afraid to use it.

The DEA reported an alarming 780 percent increase in cases over the last three years, largely due to its affordability and accessibility.

Now many questions are being raised about the drug’s legality, as well as other synthetic drugs of its kind.

Among many other impacts, flakka, bath salts, and other synthetics are changing the face of state and federal drug legislation and case laws setting precedents.

This article focuses on drug laws, criminal penalties, criminal defenses that apply flakka and other synthetic drugs.

It will also provide important facts and resources about “flakka”.

Laws that Apply to Flakka and other Synthetic Drugs in Arizona

Flakka is unlawful in Arizona.  It is both a Controlled Substance and a Dangerous Drug, which carries the most severe penalties.

Synthetic drug manufactures and sellers, are presenting unique challenges to police, prosecution, and state officials making it difficult to prosecute synthetic drug offenses.

This is due to the fact that synthetic drugs, including flakka, are continually evolving in their ingredients.

New chemicals and substances are being introduced in to their mixtures faster than laws can be enacted to ban them.

After several legislative changes, over recent years, the Legislature unanimously passed House Bill 2327 in 2013.  This bill added the alpha-PVP, which is the main active ingredient in flakka, to Schedule I of the state’s Controlled Substances Act to the Arizona Drug Laws, those drugs and substances regarded as being the most dangerous.

The bill also banned all synthetic versions of marijuana cocaine and ecstasy, labeling them as “Dangerous Drugs” defined under A.RS § 13 – 3407.

Defenses for Flakka and Synthetic Drug Charges – Lack of Knowledge; Mistake of Fact; Mistake of Law and Constitutional Violations 

While many defenses exist to challenge drug charges in Arizona, we will focus on three common defenses, and one recent uncommon defense heard in the United States Supreme Court recently.

The four defenses that will be discussed are:

1.   Lack of Knowledge;
2.   Mistake of Fact;
3.   Mistake of Law; and
4.   Constitutional Violations

Lack of Knowledge 

Under A.R.S. 13-3407, a person may be in violation of the dangerous drug laws if they knowingly possess, use, manufacture, transport, offer to transport for sale, sell, or distribute dangerous drugs.

As provided under Arizona Law A.R.S. 13-202 the word “knowingly’ expressly provides a mental state or culpability which must exist in order for a person to be prosecuted for a drug crimes offense.

Not all criminal laws contain this language.  For example this language is not included in the Arizona DUI laws.

With that, the burden rests with the prosecution to prove beyond a reasonable doubt that the defendant had knowledge that they were using or possessed an illegal drug.

There are a number of situations where “Lack of Knowledge” may apply.  In one example, a person borrows a friend’s car to go to work and is stopped by police for speeding.

During the traffic stop the police see the drugs which appear to be cocaine or flakka, on the back seat floorboard of the borrowed vehicle.  The driver is then arrested for possession of a dangerous drug.

The driver did not have knowledge that the drugs were in the back seat when he borrowed it from his friend.

In this scenario, the suspect could utilize this defense.  They would need to provide a showing that they did not know the drugs were there, and no reasonable person would not, or should have known under the same circumstances.

Mistake of Fact

Mistake of fact exists when a person honestly and genuinely believes they are not committing a crime, when they engage in an offense.

Thus, a person acknowledges that they carried out an act, but did so under purely innocent circumstances.

One example of the applicability of this defense is if a person purchases a dangerous drug, but thought they were making a purchase for candy, a lawful edible substance.

However, what the consumer did not know at the time, was that the manufacturer intentionally disguised or mislabeled an unlawful product such as flakka, bath salts, or other synthetic drugs.

Recently, a Consumer Alert was issued in June 30, 2015 by the Miami-Dade Police Department’s Forensics Services Bureau.

Officials found a variety of substances being sold that resembled a variety of popular candy sold in retail stores.  Officials later discovered the candy was coated or laced with flakka, and its derivatives.

Thus, if a person unknowingly purchased the product that any prudent person would have reasonably thought was a lawful edible, this is both a material and mistaken fact.

Such circumstances would present a valid criminal defense, in this case.

Search and Seizure Law Violations 

Drug charges are often challenged as a result of Constitutional Rights violations.

Suspects have afforded by both the state and federal constitution.

One of the most common Constitutional challenges in drug defense cases is for violations of “search and seizure laws.’’

If material evidence is obtained by police unlawfully, a motion can be filed with the court to suppress the evidence.

An example of an unlawful search and seizure would result, if evidence was obtained by police without a valid search warrant.

If the court agrees, the evidence will then be inadmissible against the defendant for prosecution.

There are exceptions under A.R.S. 13-3925.  If one does not apply, then generally suppression of material evidence leads to dismissal of the charges, or other favorable outcome in the case.

Some exceptions include:

• Exigent circumstances;
• Protective sweeps;
• Searches incidental to arrest; or
• Consent by the suspect to search home or property

In a recent Arizona Supreme Court case the Justices analyzed the Arizona statutes relating to privacy rights.

In their ruling, the high court justices  acknowledged that based on the language in the Arizona statutes, the state of Arizona affords it residence more privacy than the Federal laws.

The Arizona Supreme Court also reaffirmed that a higher standard of privacy protections exist for a person in their home or residence over their vehicle.

Mistake of Law

Under A.R.S. 13-204 the Arizona laws basically states that a mistaken belief of the law does not relieve a person of criminal liability unless it negates or contradicts a culpable mental state.

Under Arizona law, having a culpable mental state means to act intentionally, knowingly, recklessly, or with criminal negligence in committing an offense.

Generally, the lack of knowledge of the law usually is not a valid defense. But successful challenges in a synthetic drug case in the US Supreme Court, contradicted that rule.

In a landmark case June 18, 2015, the U.S. Supreme Court handed down a landmark ruling involving mistake of law dealing with synthetic drugs.

In McFadden v. United States, the defendant successfully argued that he did not know the “bath salts” he was distributing were regulated as an Analogue Drugs under the Federal Controlled Analogue Enforcement Act.

As a result, the U.S. Supreme Court vacated and remanded the two lower court decisions on the grounds that the Analogue Act requires the prosecution to prove beyond a reasonable doubt that the defendant knew he was distributing a Controlled Substance under the Act.

The complicated mixtures of synthetics, ever changing laws to ban them, and mistaken understanding of whether or not they were lawful or unlawful, impacted the US Supreme Court Decision in this case.

The High Court opined that “A defendant needs to know more than the identity of the substance…  [He] needs to know that the substance is controlled.”

While the full impact of ruling on Arizona Laws on future cases has not yet played out, it may arise as an effective defense.

10 Sentencing Considerations – Classifications – Penalties   

The classification of an offense dictates the range of penalties for drug charges, and penalties.

Arizona Revised Statutes § 13-3401(6)(c)(iii) defines alpha-PVP as a “dangerous drug.”  A person convicted of a crime involving a dangerous drug can face increased penalties us ARS § 13-3407.

Ranges of penalties exist within each Classification.  The Judge has the discretion of providing mitigated, presumptive, or aggravated sentencing within those ranges.

• First-time or repeat offense;
• Quantity of the drug found;
• Under or over the Statutory Threshold Amount
• Intended Purpose (use v. sale)
• Age of the defendant;
• Prior criminal history;
• Eligibility for Drug Court Program;
• Other Drugs found in possession;
• Other crimes committed during the same incident
• Whether or not a firearm or other deadly weapon was involved

Classifications for Dangerous Drugs A.R.S § 13- 3407 (B) 

• Possession or use Class 4;
• Possession of chemicals, and/or equipment used for making narcotic drugs Class 3 Felony:
• Administration Class 3 Felony:
• Possession of equipment, and/or chemicals Class 3;
• Intent to sell or sales of the dangerous drug Class 2;
• Transfer of the drug, or offer to transfer for the purposes of selling Class 2.

The mere knowing possession of a dangerous drug is a class 4 felony. Conviction can lead to a presumptive sentence of 18 months to three years in prison, with a presumptive sentence of 2.5 years, along with a fine of $1,000 or up to three times the value of the possessed substance with a maximum fine of $150,000.

If a person is accused of possessing flakka for the purpose of sale, transporting flakka for sale or import into the state or manufacturing flakka, they face class 2 felony charges. The sentence for these offenses is a prison sentence of seven to 21 years, with a presumptive sentence of 10.5 years.

Any drug-related conviction can also have profound collateral consequences. You may be ineligible for financial aid for school. You will have a permanent criminal record that could impede any future job search.

In addition, to other penalties, Drug Treatment programs are mandatory for first time, and repeat offenses.

What is Flakka?

Put simply, flakka is a synthetic version of cocaine, but far more dangerous.  It follows “bath salts” as the next generation of synthetic drugs.

You may also have also heard it referred to as “Gravel,” “$5.00 Insanity,” “powered psychosis,” “mind melt,” or “$5.00 intensity.

It can be used through means of vapor, injection, smoking or ingesting in pill or other edible form.

According to the National Institute on Drug Abuse, “vaping” the drug will send the drug into the bloodstream very quickly and can rapidly cause overdose.

One of the reasons it is considered deadly, is because the dosage is hard to control. As a result, there is a fine between achieving the desired “high” and death.

Synthetic drugs presently fall into two categories: synthetic cannabinoids and synthetic cathinones. Synthetic cannabinoids include Spice and K2, and are purportedly intended   mimic the effects of ingesting marijuana. Much observation has shown that the actual result of ingesting these synthetic cannabinoids is far different than those of smoking marijuana, though.

Flakka, sometimes called “gravel,” is categorized as a synthetic cathinone. Cathinones are stimulants, often called “uppers,” including cocaine and methamphetamine. A synthetic cathinone, therefore, is intended to simulate the effects of ingesting one of these stimulants. Substances identified as “bath salts” are often considered synthetic cathinones.

The chemical name for the drug called flakka is alpha-Pyrrolidinopentiophenone (alpha-PVP).

What $5.00 a hit really buys you: Adverse effects of flakka

As a synthetic cathinone, flakka is intended to act as a stimulant: To speed up the heartrate, making the user more awake.

The actual effects of ingesting the substance, however, are very hard to predict.

Flakka is produced using chemicals, and the exact chemicals may vary. Alpha-PVP, according to the National Institute on Drug Abuse, is intended to cause and “excited delirium.” Reported effects have included:

• Death
• Seizures
• Heart failure
• Mental disturbances. short and long term
• Hyperthermia
• Kidney Failure
• Severe Hallucinations
• Bizarre behavior
• Paranoia
• Hyper-stimulation
• Violent aggression
• Screaming, struggling, flailing
• Extreme rise in body temperature
• Dehydration due to extreme body temperatures and overactive behavior

Serious, and sometimes fatal injuries indirect injuries which include but are not limited to suicide, homicide, self-inflicted wounds, injuries or fatalities resulting from police attempting to subdue the suspect; suspects running out in front of speeding vehicles, including trains.

Some have reported that the drug gives them the false impression that they possess “super human strength”.  This is more likely a combination of its hallucinogenic quality coupled with its tendency to lead to violent behavior.

Flakka incidents frequently involve nudity because the spike in body temperature can lead a judgment-impaired person to strip their clothing off, and the inability to reduce their body temperature.

However, the combination of effects on the body, in addition to their extremely unpredictable nature, is very dangerous, both to the user and to others.

A flakka user in Florida was charged with child neglect after she blacked out and abandoned her one-year-old on the street.

In addition to the inherent health risks of the drug, use can result in harm or death when law enforcement officers are called on the scene to subdue a violent, or dangerous behavior while under the influence of Flakka.

Failure of the suspect to obey police commands or orders to retreat, will result in the suspect being tased, or fatally wounded.  Police have been finding it necessary to use deadly force and are unable to subdue a suspect in an effort to protect public safety.