PROSECUTORS GRAPPLE WITH STATE METH LAW

Three Judges Have Ruled That The Statute Is Unconstitutional

Constitutional or unconstitutional?

That"s the question in many southcentral Kentucky courts as
prosecutors grapple with varying opinions on Kentucky Revised Statute
218A.1432 (1)(b), a portion of the state's methamphetamine laws.

Circuit Court judges William Harris, Tyler Gill and John D. Minton,
Jr. have ruled the law unconstitutional because they say it fails to
implement a clear, objective standard to determine when citizens
violate the law and could result in arbitrary arrests and convictions.

Their rulings have changed the way prosecutors in their jurisdictions
pursue criminal cases against suspected methamphetamine makers.

"That's their interpretation of the law. It's kind of like setting up
the rules of the game," said Clint Willis, Commonwealth's Attorney
for Simpson and Allen counties.

Willis is reexamining cases involving people who were indicted under
the statute in question.

The law charges a person with manufacturing methamphetamine if the
person "possesses the chemicals for the manufacture of
methamphetamine with the intent to manufacture methamphetamine."

The problem is that the chemicals used to manufacture meth such as
coffee filters, over-the-counter sinus medication, glass jars, lye,
car batteries and propane torches all are legal to buy and
conceivably could be purchased all at once by someone with no
criminal intent.

Some of those initially charged with manufacturing meth may be
reindicted under different charges such as theft of anhydrous
ammonia, which also is a felony, Willis said.

The three judges have ruled the law "vague" and said it leaves the
door open to too much speculation on the part of law enforcement.

"If my local judge says that's the way he is going to rule, then
that's the way I'm going to do it. There's no point in doing
something that's not going to stand up to a legal challenge," Willis
said.

Warren Commonwealth's Attorney Steve Wilson faces the same legal challenges.

"What it's causing us to do is not indict people," Wilson said.
"Knowing this ruling is out there, we have to look at the case and
look at this ruling and make a determination as to whether or not we
can support a conviction under the statute relating to manufacturing."

Barren Circuit Judge Benjamin Dickinson in three separate
manufacturing cases disagreed with his counterparts, Barren County
Commonwealth's Attorney Phil Patton said.

"Though certain "everyday" items may be possessed legally, their
possession under the statute is only made illegal if joined with
proof of intent to manufacture methamphetamine, a substantial burden
and not a proscription which interferes in any way with the legal
possession of those items," Dickinson wrote in his opinion.

A Kentucky Supreme Court ruling in Commonwealth vs. Steven Hayward,
which became a final decision Feb. 15 seems to support Dickinson's
opinion.

"Possessing the primary precursor, the only precursor for
methamphetamine, ephedrine or pseudoephadrine, along with all other
necessary chemicals for methamphetamine manufacture, provided legally
sufficient basis for jury to find that appellee was trafficking in
methamphetamine," according to the Supreme Court ruling.