Drug charges are complicated. And sometime crazy—particularly where adulterants and dilutants are concerned…
Determining the Level of Offense
To determine what level of offense possession of a drug is, four factors generally come into play. First, the specific drug itself determines the level of offense. For example, marijuana in an amount less than 4 ounces is always a misdemeanor; so you could possess, say, 110 grams of pot, and it would be a misdemeanor level offense. However, any amount of wax (butane hash oil), heroin, or another drug would be a felony level offense. What matters here is the specific drug itself. Second, as I have written about before, it matters a great deal whether the charge is mere possession or some offense indicating distribution or manufacture of drugs (e.g. manufacture/delivery charges), as the latter increases the level of offense. Third, the place of possession matters: a drug free zone enhancement increases the level of offense. (I have written on drug free zones previously, as well.)
Finally, the quantity of the drug determines the level of offense. Less than two ounces of marijuana is a Class B misdemeanor; 2 ounces or more, but less than four ounces is a Class misdemeanor; and a ton or more marijuana is a first degree felony offense. Less than a gram of heroin is a state jail felony; whereas 1 gram or greater but less than four grams of heroin is a third degree felony; and so on. As to the quantity, adulterants and dilutants come into play.
Adulterants and Dilutants
What are adulterants and dilutants? Adulterants and dilutants are, put simply, any material that increases the bulk (weight) or quantity (amount) of a drug. Sometimes adulterants and dilutants are added intentionally to “cut” the purity of drugs—baking soda, Tylenol PM, talcum powder, sugar, or other drugs. Occasionally, however, adulterants and dilutants are spontaneously added: for example, when the police rush into a person’s house, and the person attempts to pour methamphetamine into a bottle of bleach to hide it, the bleach is now an adulterant or dilutant.
Adulterants and Dilutants Effect on Weight of Controlled Substance
“Controlled substance” (drugs) are defined as “a substance, including a drug, an adulterant, and a dilutant” listed in the Health and Safety Code. Meaning, the weight of an adulterant or dilutant—even where the adulterant is not a controlled substance itself, for example, baking soda—is included in the weight of the drug.
Suppose .9 grams of meth is poured into a 12 ounce bottle of Coca Cola as the police approach the car. The weight of the methamphetamine, for purposes of charging, is now 340 grams (12 ounces = 340 grams.) 340 times the initial weight. A state jail felony amount (as .9 grams is less than 1 gram) is now punishable as a first degree felony (200 to less than 400 grams)—punishable by 5 to 99 years in prison!!!
Doesn’t Have to Be Intended to Increase Weight or Quantity
And it happens: Jones and a friend were driving around backroads, making “shake-and-bake” methamphetamine in the car as they traveled along, with smoke pouring out of the window. Cops began to pursue them, and Jones’ friend began tossing paraphernalia used to manufacture methamphetamine—coffee filters, plastic containers, etc.—out of the car window. Friend said they were making meth, and friend poured the manufactured liquid meth into a bleach container as the police approached to avoid detection. Friend said the liquid meth would have yielded about 7-10 grams of meth in powder form. State charged Jones with manufacture of more than 400 grams of methamphetamine, based on the contents of the bleach bottle—2,375.8 grams. (Said the Court of Appeals: “We must include the weight of an adulterant or dilutant—i.e. the bleach—to the aggregate weight of the controlled substance, regardless of whether the bleach was used or intended to increase the bulk of the controlled substance…It can reasonably be inferred that the two liquids mixed when the liquid methamphetamine was initially poured into the bleach.” Jones v. State, 195 S.W.3d 279 (2006))
Blood Counts Too
And it happens with blood too. Seals was investigated based on a tip suggesting he manufactured methamphetamine. Cops discovered a syringe and a vial containing methamphetamine. The syringe weighed 0.05 grams and the contents of the vial weighed 1.50 grams. However, in addition to methamphetamine, the vial contained “nicotinamide” (Vitamin B3) and blood. Seals admitted to possessing less than a gram of meth, and said the vial was used to squirt blood and trace amounts of methamphetamine when he couldn’t inject meth into his arm. (This is not a technique specific to Seals: when methamphetamine or heroin is injected, occasionally a bit of blood is drawn back into the syringe. This blood contains trace amounts of meth or heroin, and can be used later to get high.) The State charged Seals with possessing 1-4 grams of methamphetamine. At issue was whether the blood could be considered an adulterant or dilutant. And, the Texas Court of Criminal Appeals held that that the blood could, in fact, be considered an adulterant or dilutant, and thus part of the weight of the methamphetamine possessed by Seals. (Seals v. State, 187 S.W.3d 417, Tex.Crim.App. 2005, en banc.)
Conclusion
So, it’s clear that “adulterant” and “dilutant” include any substance which increases the quantity or weight of a controlled substance, even where the dilutant or adulterant is not intended to be used as such, and even where the adulterant or dilutant is not, itself, a controlled substance.