Criminal Law

Legal Consequences of Making and Taking Meth

By Janet Portman, Attorney
State and federal law prohibit the possession, use, manufacture, and sale of methamphetamine, except for one FDA-approved drug, Desoxyn.

Methamphetamine, or “meth,” can be used legally when it’s prescribed by a doctor, as was done in the past to treat conditions such as alcoholism, narcolepsy, depression, obesity, and attention deficit hyperactivity disorder (ADHD). Nowadays, meth is legally available under the trade name Desoxyn, to treat severe obesity, narcolepsy and ADHD, but it’s rarely prescribed. Since 1971, when Congress passed the Comprehensive Drug Abuse Prevention and Control Act, each drug has been classified a “Schedule II” drug, the most restrictive classification for a prescription drug.

Like amphetamine, its older cousin, (the drugs were synthesized in 1887 and 1919, respectively), meth is subject to misuse and is widely available on the black market. Taking the drug without a valid prescription, and possessing the chemicals and equipment used to make it (such as balances and scales, known as “precursors”), are felonies under federal law and most state laws.

For more detailed overview, see the federal Drug Enforcement Administration’s (DEA’s) fact sheet, “Methamphetamine.”

What is Crystal Meth?

Meth is often referred to as “crystal meth.” The adjective describes the physical appearance of the drug, which (unlike many drugs, such as marijuana and cocaine) is made from chemicals, not plants. After mixing the chemicals, the drug is made into a powdery substance or a rock-like crystal, hence the name. Meth can be smoked, snorted, and injected. Meth also goes by the names “ice,” “speed,” “crank,” and “glass.”

Making meth is a dangerous process. The chemicals are quite volatile, and when mixed they create fumes that permeate everything they touch, including walls, furniture, clothing, and plumbing. The residue remains long after the product (and the criminals) have departed, and its clean-up is long and arduous. Many landowners, discovering to their dismay that their properties have been used to make meth, skip the cleaning and simply tear-down the structures. They take this drastic step because even a thorough cleaning may not rid the structure of the taint, and because state disclosure laws relating to renting and selling property force sellers or landlords to disclose the building’s meth-lab history. After disclosure, the landlords and sellers of cleaned-up labs often find that they have unmarketable properties on their hands. It’s faster and more economical to start with a vacant lot or a new structure.

The Crime of Using Methamphetamine

Possessing meth, let alone using it, is a crime in every state and in the federal system. The prosecutor need only convince the judge or jury, beyond a reasonable doubt, that the defendant knew that the substance he possessed and/or used was meth. The requirements for proving possession of precursor drugs or paraphernalia are similarly straightforward. For instance, in a federal prosecution, the prosecutor must convince the jury that the defendant knew (or had reasonable grounds to conclude) that the items possessed would be used to manufacture meth (21 U.S.C. § 841(c)).

Defendants charged with possession or use sometimes defend themselves by arguing that they had a valid prescription. This is a difficult defense to present, because it requires the defendant to produce an actual prescription from a medical doctor, as well as pharmacy records.

The Crime of Possession for Sale

Possessing meth for sale is a more serious crime that possession for personal use. Accordingly, it carries greater punishments (see below). Prosecutors base their cases on the amount of meth the defendant possessed (measured by weight). Large quantities obviously indicate an intent not to simply use, but to sell. When prosecutors are faced with close cases, they focus on other aspects of the case that indicate commercial activity rather than personal use, such as regular contact with buyers.

Penalties for Meth Possession or Use, Manufacture, and Sale

The penalties for meth possession, sale, and manufacture depend on the laws of the state where the case is brought (federal charges carry the same penalties everywhere). A conviction for possession and use carries consequences that range from a fine, a misdemeanor jail term, or a prison term for a felony conviction. Punishments increase according to the amount of meth at issue.

Even greater penalties apply if a person is convicted not simply of possessing meth, but of possessing it or making it with the intent to sell or traffic it. Under federal law, a first conviction for simple meth possession can result in a jail sentence of up to one year (21 U.S.C. § 844(a)). But a federal defendant convicted of possessing 5 grams of meth with the intent to distribute it faces a sentence of at least 5 years (even for a first offense). The terms increases to at least 10 years for possessing 50 grams for distribution (21 U.S.C. § 841(a), (b)(1)(B)(viii)).

Questions to Ask Your Lawyer

  • My friend had a prescription for meth and let me use some. Did he break any laws? Did I?
  • I am charged with possession for sale. But I bought for my own use, and purchased the quantity I did because it was a good deal and I didn’t want to risk another buy. Can I mount that defense?
  • In some states, possession for personal use of small amounts of illegal drugs are infractions, not misdemeanors or felonies. Does the amount in my case fall qualify the offense for treatment as an infraction?
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