State v. Erban
Erban argued that 1-desoxyephedrine was not controlled by state and federal law and therefore it was not unlawful for him to attempt to manufacture it.
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If the substance intended to be manufactured was not controlled, it would have had a clear impact on the verdict and conviction would be a serious injustice. If Erban's assertion is correct, then his actions were not criminal. One cannot be convicted of attempt to manufacture a controlled substance if the intended substance is not controlled.
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To analyze Erban's argument an outline of state and federal drug laws is useful. Section 19-03.1-23(l), N.D.C.C., makes it unlawful to manufacture a "controlled substance," which is defined in Section 19-03.1-01(4), N.D.C.C., as a "drug, substance, or immediate precursor" listed in schedules set out in the Code. "[A]ny material, compound, mixture, or preparation which contains any quantity of" methamphetamine, its salts, isomers, and salts of isomers are listed as Schedule II controlled substances. Section 19-03.1-07(5), N.D.C.C. Thus, according to expert witnesses in this case, 1-desoxyephedrine is an isomer of methamphetamine and is controlled.
Section 19-03.1-02(4), N.D.C.C., however, says:
"If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the [North Dakota controlled substances] board, the board shall similarly control the substance under this chapter after the expiration of thirty days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling, or deleting a substance, unless within that thirty-day period, the board objects to inclusion, rescheduling, or deletion. In that case, the board shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling, or deletion under this chapter by the board, control under this chapter is stayed until the board publishes its decision."
Thus, under certain circumstances, a drug which is deleted from the federal drug schedules will automatically be deleted from the state schedules.
The federal drug statutes similarly set out schedules of controlled substances and grant the Attorney General authority to add, delete, or reschedule drugs based upon statutory criteria. See Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 801 et seq. "[A]ny material, compound, mixture, or preparation which contains any quantity of" methamphetamine, its salts, isomers, and salts of isomers are currently listed as Schedule II controlled substances under federal law. 21 C.F.R. § 1308.12(d) (1988).
Erban argued that the substance 1-desoxyephedrine was excluded from the federal schedules, and thus from the state schedules, pursuant to the regulation codified at 21 C.F.R. § 1308.22 (1988), which excluded from all schedules certain nonnarcotic substances which may be lawfully sold over the counter. Excluded by this listing was the Vicks inhaler containing 1-desoxyephedrine.
Erban argued that it was the substance 1-desoxyephedrine itself which was excluded from the schedules by this regulation, not just the Vicks inhaler which contains a small amount of it. The statutory and regulatory arrangement, however, demonstrates that 21 C.F.R. § 1308.22 excluded only the over-the-counter preparation listed, not it's component which is also listed. The clearest indication is separate listings of different over-the-counter preparations, each containing the same controlled substance
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If the Attorney General intended to exclude all forms of 1-desoxyephedrine from the schedules of controlled substances, he could simply list that substance once, without mentioning each different over-the-counter preparation containing it.
Therefore, we conclude that 1-desoxyephedrine was not deleted from the federal schedules of controlled substances, and it therefore remained controlled under Section 19-03.1-07(5), N.D.C.C.