Often referred to as “K-2” or “spice”, synthetic marijuana is made from a mixture of chemicals that mimic the effect of THC. Although users may experience a similar high, the synthetic version can have life-threatening side effects.
As a result, lawmakers are pushing to get K-2 off the streets. This means that the likelihood of getting arrested for a K-2 offense is on the rise.
If you are facing charges related to the manufacture, distribution, or possession of K-2, we can help. Contact us at 212-736-3900 for a risk-free consultation.
K-2 Violations Under Federal Law
Federal law bans the possession, distribution, and sale of synthetic marijuana. In other words, whether you have K-2 in your pocket, give it to a friend, or actively sell it, you are breaking the law and could face large fines and serious jail time.
To understand why K-2 is so dangerous, read our blog post:
A specific breakdown of the penalties you could face will be discussed below, but first, let’s look at what you have to do to get to that point.
K-2 Illegality by Statute
21 U.S. Code § 841 makes illegal the knowing or intentional manufacture, distribution, and dispensing of a controlled substance.
Within that dense sentence are actually three elements of a crime:
(1) knowingly or intentionally
(2) manufactured, distributed, or dispensed
(3) a controlled substance.
What’s important to understand here, is that the government has the burden of proving beyond a reasonable doubt each of those three elements in order for you to be found guilty.
In other words, it’s not enough that you knowingly manufactured a substance, it must be a controlled substance. Nor is it enough that you distributed a controlled substance if the government cannot prove that you did so knowingly or intentionally.
What is a Controlled Substance?
The Controlled Substances Act (CSA) is a federal statute that regulates the manufacture, importation, possession, use, and distribution of certain substances. Under the CSA, drugs are classified into five different schedules, depending on their potential for abuse, their accepted medical purpose, and their likelihood to cause addiction.
For example, Schedule 1 drugs are the most criminalized controlled substances. They have a high potential for abuse, no accepted medical purpose, and no accepted safety for use.
On the other hand, Schedule 5 drugs are the least criminalized. They have a low potential for abuse and an accepted medical purpose, but they’re included in the CSA because their use may lead to limited physical dependence.
Here’s a brief breakdown of the CSA classification schedules:
|1||High||None||Severe Physical and Mental||Heroin, LSD|
|2||High||Severely restricted||Severe Physical and Mental||Cocaine, Methadone|
|3||Medium||Yes||Severe Mental, Moderate Physical||Ketamine, Steroids|
|4||Low||Yes||Mild Mental or Physical||Xanax, Barbiturates|
|5||Lowest||Yes||Mild Mental of Physical||Cough Suppressants|
In theory, K-2 is a schedule 1 substance. But remember, “K-2” is really just a term used to describe a recipe of chemicals that, together, imitate the effect of marijuana.
That means that lawmakers can’t simply put “K-2” on the controlled substances list and call it a day, anymore than they can put “chocolate cake” on the list. They must schedule the specific chemicals in K-2 individually.
And this is where things get complicated.
While many of the most commonly used chemicals have been added in recent years, manufacturers of K-2 have been keeping track of the changes. As each new chemical becomes illegal, it gets nixed from the recipe and replaced with a legal (and often more dangerous) substitute.
The point is, whether you have committed a K-2 violation under federal law really depends on what chemicals were in the K-2 you were charged with. A criminal defense attorney will analyze all of these nuances.
Detecting K-2 Related Crimes
Understanding how dangerous and unpredictable a K-2 recipe can be, it shouldn’t be surprising that medical emergencies often provide the starting point of a K-2 investigation. If victims keep popping up in a particular area, there’s a good chance of finding the source nearby.
Undercover Police Officers
One of the best ways to investigate K-2 distribution is to attempt to buy from a suspect. While other illegal drugs deals are commonly made behind the closed doors of cars or apartments, K-2 is unique in that many distributors double as convenience store owners, selling directly from behind the counter.
This makes it easier for undercover officers, in that they don’t need to interface privately with a drug dealer in order to investigate. Instead, they can simply walk up to a counter, ask questions, and begin collecting evidence.
Search and Seizure
When enough evidence is gathered, the police may have probable cause to make an arrest, and/or to obtain a search warrant.
With a search warrant, police may be able to search your home, car, place of employment, or anywhere they expect to find evidence.
If K-2 is found, it will be seized as evidence and sent to the Drug Enforcement Administration (DEA) for testing. This is when the specific chemical composition is determined.
Police will attempt to question you and others involved to gather evidence against you, and to identify more potential suspects.
Civil K-2 Actions
In addition to criminal charges, if you have been charged with a K-2 crime, you may face a civil lawsuit.
This would likely arise if the K-2 you sold or manufactured caused someone to suffer serious injury or death. In the case of injury, that person might incur medical expenses, lost wages, or emotional pain and suffering. In the case of death, that person’s estate would incur funeral costs, emotional damages, loss of a breadwinner, among other damages. These losses are termed “damages”, and the purpose of a civil lawsuit is to hold you liable for paying them.
Burden of Proof
Whereas in a criminal case, the prosecution must prove a statutory violation beyond a reasonable doubt, in a civil case, the plaintiff only needs to prove by a preponderance of the evidence (anything greater than 50%) that you either negligently, recklessly, or intentionally caused their harm.
For example, if you sold K-2 under the mistaken belief that it was perfectly safe, but a reasonable person would have investigated that belief further, you would likely be found negligent and thus responsible for your percentage of the fault relative to the plaintiff’s injury.
But if you sold K-2 knowing it was dangerous and likely to cause injury, you could be forced to pay punitive damages in addition to the actual damages the plaintiff incurred.
How the Civil Case Relates to Your Criminal Case:
The rules of discovery in a civil case differ from those in a criminal case.
The fifth amendment of the Constitution protects your right against self-incrimination, but the rules are different in civil cases. For example, you can be compelled to sit for a deposition, where you give sworn testimony under oath regarding the facts of the case.
What’s important to understand here is that if someone was injured or killed in connection with your K-2 crime, you may be confronted with a civil case. Your criminal defense attorney can help you handle the civil aspect of the matter in a way that will best protect your rights.
Criminal K-2 Actions
If you are charged with a K-2 crime, the government must file a claim against you in order to turn that charge into a conviction.
It is called a “claim” because it hasn’t been proven yet. In our justice system, you are innocent until proven guilty, and the prosecution has the burden of establishing beyond a reasonable doubt that you committed the crime they are accusing you of.
In a criminal case, the district attorney (DA) is essentially the government’s lawyer. Their side is called the prosecution, and you are the defendant.
Just as the DA represents the government, your criminal defense attorney represents you. Your lawyer will use his experience and knowledge speak on your behalf, as your personal advocate, in order to best protect your rights.
Once the claim is filed, one of your options is to plead guilty to the charges. Many people choose this because it cuts off the expense of defending a lawsuit through to trial. In addition, the prosecution will often incentivize a guilty plea by offering a “plea deal”, or an offer to reduce your charges.
In other words, often times the risk of pleading “not guilty” is that you will ultimately end up spending a lot of money and time, only to be charged with a more severe crime than you could have been charged with at day one.
Your criminal defense attorney will help you determine which option is best suited to your individual circumstances. While is up to you to determine how much time and money you are willing to spend, and how much risk you are willing to take, your lawyer will help you assess your likelihood of success at trial.
If you decide to plead guilty, your lawyer may also be able to help you negotiate a more favorable plea deal than the prosecution initially offers.
Pleading Not Guilty
Ultimately, the purpose of a criminal trial is to give you an opportunity to defend yourself. Again, the wisdom of this choice depends on your individual circumstances.
But should you choose to plead not guilty, you will be arguing against the prosecution’s allegations before a jury of your peers.
While many people think the jury’s job is to decide whether or not you committed the crime, this is not true. Instead, the jury’s job is to hear both sides of the case and to determine whether the prosecution proved your guilt beyond a reasonable doubt.
They may really think you’re guilty, but they will be legally instructed to set their personal opinions aside and to objectively apply the law.
In preparing a trial strategy, your criminal defense attorney will anticipate the prosecution’s arguments in order to show that they have not met their burden.
In other words, your lawyer does not need to prove that you didn’t commit the crime. He rather needs to illuminate the reasonable doubt. Some of the ways this is done include:
- Reviewing the prosecution’s evidence,
- Gathering additional evidence,
- Preparing questions for the prosecution’s witnesses,
- Bringing in witnesses to support your case,
- Helping you decide whether to testify
- Preparing you and your witnesses for cross-examination.
If you are found guilty, the penalties for a federal K-2 violation can be severe.
How much jail time you face depends on a number of factors, including:
- The specific chemicals contained in the substance,
- The quantity of the substance,
- Whether death or serious bodily injury resulted from the crime,
- Your criminal history
For example, penalties regarding Schedule 1 substances include a minimum of 10 years in prison for a first-time offense, and 20 years if death or serious bodily injury resulted. For a second time offense, 20 years or life in prison if death or serious bodily injury resulted.
Depending on the severity of the offense, you could also be subject to mandatory minimum sentencing. That means that if you were found guilty, the judge would not be able to use discretion in deciding how many years you should spend in prison, but would instead be bound by law to sentence you according to a predetermined set of guidelines.
Consequences of Incarceration
Beyond losing years of your life behind bars, the consequences of serving time in prison are often devastating.
If you are married, the divorce rate where one spouse is imprisoned for a year is more is 80% for men and nearly 100% for women. The odds that the marriage will end in divorce increase by 32% per additional year.
If you have children, parental incarceration is recognized as a uniquely adverse childhood experience due to the trauma, shame, and stigma involved. Children with incarcerated parents tend to exhibit more antisocial behavior, as well as conduct disorders and depression.
On a personal level, incarceration has been linked to increased cigarette smoking, premature death, and vulnerability to disease. Finding employment after incarceration is a notorious challenge, and the damage to your reputation is often irreversible.
None of this is intended to scare you, but rather to help you understand the gravity of the situation you’re faced with. By understanding your options while you have them, you can best prepare yourself to take advantage of the opportunities you do have.
Your K-2 Defense Strategy
Remember, the prosecution seeks to prove your guilt by submitting evidence to the jury. If that evidence proves the crime was committed beyond a reasonable doubt, the jury will most likely deliver a guilty verdict.
But what if the prosecution was legally barred from presenting certain evidence? This is what happens when evidence is gathered in violation of your Constitutional rights.
Fourth Amendment Defense in K-2 Crimes
The Fourth Amendment of the Constitution protects your right to privacy. Part of this right to privacy involves protection against unreasonable searches and seizures.
When investigating a crime, the government cannot intrude into areas where you have a “reasonable expectation of privacy”, unless they obtain a valid search warrant.
So, imagine you were charged with intent to distribute K-2 after the police broke into your house. What if you could show that the police broke in without a valid search warrant? Or that the search warrant was not validly obtained?
All of the evidence obtained through that violation would be suppressed. That means, even though the evidence is in the prosecutor’s hands, he would not be able to use it. Depending on the surrounding circumstances, your case might be dismissed.
Not every Fourth Amendment violation is as simple as this example. While most people know that the police can’t search your home without a warrant, a more subtle violation may have occurred without your awareness. Your criminal defense attorney will go over the events with you in detail to identify any possible Fourth Amendment defense.
Fifth and Sixth Amendment Defenses in K-2 Crimes
When the police inform you of your “right to remain silent” upon arrest, they are basically informing you of your Fifth Amendment right against self-incrimination. As you may remember from the well-known speech, it includes your right to consult with an attorney.
The Sixth Amendment applies the same rights to the criminal proceedings stage.
The point here is that the government must follow certain procedures under the Constitution. Just as with a Fourth Amendment violation, evidence gathered in violation of your Fifth or Sixth Amendment rights will likely be inadmissible.
Lack of Intent
As we discussed earlier, a key element of a K-2 offense is proof of knowledge or intent.
This element can arise in a number of contexts. For example, if you are found with a larger quantity of K-2 than would reasonably be needed for personal use, the presumption may be that you intended to distribute or sell it.
However, as with any element of the crime, the prosecutor must prove your intent beyond a reasonable doubt.
The role of a defense attorney here would be to identify weaknesses in the prosecutor’s argument.
Imagine the prosecutor stands before a jury, arguing that the drawers full of K-2 found in your apartment establish beyond a reasonable doubt that you intended to sell it. What individual could possibly consume that much K-2? The only rational conclusion is that you possessed such a large quantity because you planned to sell it.
The argument on its own may sound convincing to a jury. But your lawyer’s job is to emphasize that there is a reasonable doubt as to your intent to sell.
Above are just a few defenses your attorney may employ relative to your K-2 offense. Ultimately, how you defend yourself will depend on the specific facts of your case, and an experienced criminal defense lawyer will help uncover the strategy best suited to your specific situation. Which leads to our last point:
What to Do if You Have Been Charged
Hopefully, this article has helped give you a better understanding of all the aspects involved in a federal K-2 charge. You should be feeling more informed and clear-headed about your options.
To the extent that you’re left with unanswered questions, know that this information is meant to give you a general overview. The best way to understand how it relates to your specific circumstances is to consult with a criminal defense attorney.
One of the many reasons why representation is so important is that the statements you make to investigators today could provide all the evidence the prosecution needs to establish your guilt.
Many suspects mistakenly feel they will be treated more favorably if they cooperate with investigators. They imagine that if they refuse to answer questions, whether by staying silent or requesting a lawyer, they are giving the impression that they are guilty.
Maybe they come clean. Maybe they tell lies they’ll get caught in later. Maybe they accept a plea deal that seems too good to be true, not knowing the prosecution is motivated to offer it because they know they’ll never be able to get a guilty verdict.
Either way, they unknowingly act against their own best interests and forfeit their constitutional protections. They act without guidance in making decisions that will affect their legal rights for the rest of their lives.
Don’t let this happen to you or to someone you love. If you have been charged with a K-2 related crime, it is important to understand that what happens to you isn’t a simple question of innocence or guilt.
An experienced criminal defense attorney is able to identify, investigate and prove in court every crack in the case against you. This could mean the difference between prison and freedom.
If you are concerned about a K-2 charge against you or someone you love, we are here to answer your questions and advocate for your best interests. Contact us for a consultation today.