Friday, April 06, 2012

Frazier not "fixed"

Heather Cessna and I won in State v. Snellings, No. 101,378 (Kan. April 5, 2012), obtaining a reduced sentence on one count of possession of a precursor. Although the KSC rejected a similar argument regarding a manufacture count, the KSC agreed that the current precursor statute, which prohibits possession of several specific items related to manufacture of methamphetamine, is still identical to the statute prohibiting possession of paraphernalia.

In 2002, in State v. Frazier, the COA held that possession of precursors (then a severity level 1 drug offense) was identical to possessing products used to manufacture methamphetamine (a severity level 4 drug offense). This holding was affirmed by the KSC in 2005 in State v. Campbell. In 2006, the Legislature removed "products" from the definition of paraphernalia, presumably in response to Frazier/Campbell (it also reduced the severity level for possession of a precursor from 1 to 2). But the statute continued to include as drug paraphernalia "equipment and materials of any kind." So the question is whether precursors are "equipment and materials of any kind" intended for use to manufacture methamphetamine. The KSC held that under any plain reading the answer is yes:

As Snellings points out, general rules of statutory interpretation require courts to give ordinary words their ordinary meaning. "Material" is defined in part as "the substance or substances out of which a thing is or can be made; [c]omposed of or relating to . . . substances." Webster's II New Collegiate Dictionary 675 (1995). Because ephedrine and pseudoephedrine are items that are precursor chemicals used in the manufacture of methamphetamine, they fit within this definition of "material." This point is illustrated by the legislature's own use of the word "materials," in K.S.A. 21-4717(a)(1)(D), which includes "precursor chemicals" as an example of "materials" that may warrant an aggravated sentence: "The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material."

I don't think this will effect as many people as Frazier, but it should result in some reduced sentences.

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