I-Team 8 investigation puts spotlight on existing drug law

INDIANAPOLIS (WISH) - Calls for tougher laws continue to grow following an I-Team 8 hidden camera investigation that showed gas stations, convenience stores, smoke shops and head shops selling chemical concoctions that kids are using to get high. But some say there's a little known law already on Indiana's books that could solve the problem now.

I-Team 8 exposed the tricks retailers and the makers of the substances are using to sell the chemicals that often come in colorful packages, with street names like bath salts, jewelry cleaner, plant food and spice.

Doctors said users who smoke, snort or inject them can have severe medical problems. The effects of smoking spice can mimic the high from smoking marijuana. Snorting or injecting bath salts can mimic the effects of crack and methamphetamines, sometimes pushing users into paranoid hallucinations.

It all sparked calls for bans from parents and local community groups in early 2011, and Indiana legislators responded, joining 32 other states in outlawing more than two dozen different chemical compounds in July.

Police raids on convenience stores and smoke shops in the weeks following implementation of the new law turned up more than a dozen criminal cases. But, in the months since then, they've increasingly turned up something else: frustration, because the chemicals being sold on store shelves are testing negative for the outlawed substances.

Indiana State Police forensic scientist Hailey Newton has tested hundreds of samples of synthetic chemical compounds bought at local stores over the last 18 months.

"There were 19 synthetic canabinoids controlled as of July 1, and six bath salts controlled also. Ever since those have been controlled, we're seeing the products change in the laboratory,” she said. “What we were analyzing prior to July 1 contained some of these controlled substances. Now, we're analyzing the exact same packaging, but they're containing a different drug."

Asked to compare what's now being tested with what her lab saw before the ban, Newton didn't hesitate.

"They're very similar compounds - the ones that are controlled and not-controlled. They are very similar in chemical structure," she said.

But they're not identical. And that's left prosecutors like Mark Lundy in a sort of legal limbo.

As a deputy prosecutor in Marion County's Criminal Charging Division, Lundy has spent decades working narcotics cases.

"The legislature is always at least one step behind the bootleg chemist," he said, "because as soon as something becomes illegal, all you have to do is change the compound around a little bit, and it no longer meets the definition on file."

That definition is often blurry at best. Some of the colorful packages have no ingredient list. Others have only cryptic directions for use. Most also come with a warning: "not for human consumption."

Asked if that wording gives those bootleg chemists a free pass, Lundy furrowed his brow.

"Well, as a vendor, I'm going to say that because …. it wasn't my intent, I'm not [responsible for misuse]," Lundy said.

But there is another law that's supposed to help bridge the gap. It's commonly referred to as Indiana's controlled substance analog act, passed by lawmakers in 2003. Some interpret the law to allow any substance that mimics the effects of a controlled substance - like marijuana or methamphetamine - to also be illegal.

"This was written because you may have a substance that's very, very chemically similar to a controlled substance, but may have some minor difference. It also has to produce the same pharmacological effect as the controlled substance," Lundy said.

I-Team 8 wanted to know why prosecutors aren't using that law to get these new chemical cocktails off store shelves.

"I think because it's a complicated statue to understand and to prove," Lundy said. "In the past we've had difficulty. Not so much proving the chemistry is similar. A forensic chemist can do that. The difficulty we've had is in proving that the effect of an analog is pharmacologically similar to that of a controlled substance.

“We're also limited a little bit by the language of the statute. It has to be something that the chemical structure is substantially similar to a controlled substance listed in Schedule 1 or 2. Well, some substances are listed 3, 4 or 5. And, in addition, the person in possession of it has to intend or represent that it will have the same effect as the controlled substance it mimics."

Asked how difficult a case like that is to prove, Lundy lowered his head.

"It's hard enough to convince a jury - under the best of circumstances - to convict on real controlled substances,” he said. “Now, you're trying to convince a jury to send someone potentially to prison for a substance that's not even a controlled substance."

Lundy should know.

He won a case over a synthetic compound from East Africa known on the street as khat by prosecuting under the controlled substance analog law in 2006. But the conviction was overturned