NORTH DAKOTA MAN FACING YEARS IN PRISON AFTER BUYING SALVIA DIVINORUM ON
EBAY

In what is likely the first arrest for possession of salvia divinorum
anywhere in the nation -- and definitely a first in North Dakota -- a
Bismarck man now faces years in prison after he bought a few ounces of
leaves on eBay. Kenneth Rau, a bottling plant worker with an interest
in herbalism, altered states, and religion and spirituality, was
arrested by Bismarck police on April 9 when they searched his home
looking for his adult son, who was on probation for drug charges.

Police found a marijuana pipe, eight ounces of salvia leaf, a quantity
of amanita muscaria mushrooms, and a number of other herbal products.
Rau now faces multiple charges, said Burleigh County States Attorney
Cynthia Feland.

"He is being charged with possession of salvia with intent to deliver,
as well as possession of psilocybin with intent, and possession of
marijuana," she said. Although Rau told the Chronicle he thought he
would be charged with a school zone violation as well, which would
have made his intent offenses Class A felonies punishable by up to 20
years in prison, that is not the case, said Feland. "He is not being
charged with a school zone violation," she affirmed.

(The psilocybin charges could go up in smoke. The amanita muscaria
mushrooms that he possessed are not controlled substances under
federal law and, while hallucinogenic, do not contain psilocybin. The
active ingredient in amanita muscaria mushrooms is muscimole.)

Rau was being charged with possession with intent because of the
weight of the leaves, she said. "We look at the typical use quantity,"
she said, "and it is similar to marijuana, with a typical use dose of
.25 grams to .5 grams, and he had significantly more than that," she
said.

Salvia divinorum, a member of the Mexican mint family, has been used
by Mazatec shamans for hundreds of years. Smoking or chewing the
leaves, or more commonly, concentrated extracts, can produce intense,
albeit short-lived hallucinogenic experiences. While the plant has
become notorious through YouTube videos of young people smoking it and
behaving strangely, it is also of interest to "psychonauts," or people
attempting to explore consciousness through herbal means.

Researchers say that while salvia's effects on consciousness may be
disquieting, the plant has not been shown to be toxic to humans, its
effects are so potent it is unlikely to be used repeatedly, and its
active property, salvinorin A, could assist in the development of
medicines for mood disorders.

There are hazards to messing with hallucinogens, one expert was quick
to point out. "It's an hallucinogen, and while its hallucinogenic
actions are different from those induced by LSD and other
hallucinogens, it has the liabilities that hallucinogens do," Bryan
Roth, a professor of pharmacology at University of North Carolina's
School of Medicine, the man who isolated salvinorin A, told Drug War
Chronicle last month. "When people take it, they are disoriented. If
you don't know where you are and you're driving a car, that would be a
bad experience."

Still, said Roth, while it may make you freak out, it isn't going to
kill you. "There is no evidence of any overt toxicity, there are no
reports in the medical literature that anyone has died from it. The
caveat is that there have been no formal studies done on humans, but
the animal data suggests that it doesn't kill animals given massive
doses, and that's usually -- but not always -- predictive for human
pharmacology."

The DEA considers salvia a drug of interest, but has yet to move to
place it under the Controlled Substances Act. A DEA spokesman told the
Chronicle recently that the plant is being reviewed to see if it meets
the criteria for inclusion on the list of controlled substances.

But driven by little more than the YouTube videos and the story of one
Delaware youth whose parents blamed his suicide on salvia, state
legislators have not waited for the DEA's measured considerations to
act. Since Delaware became the first state to ban salvia, a handful of
others, including North Dakota, followed suit. Moves are currently
afoot in a number of other states to join the club.

Salvia became illegal in North Dakota on August 1, after a bill
sponsored by three Republican lawmakers, state Sens. Dave Oelke and
Randel Christmann and state Rep. Brenda Heller sailed through the
legislature earlier this year. None of the three legislators responded
to Chronicle requests for comment this week.

After Rau was arrested earlier this month, Bismarck police warned that
it could be only the beginning in the fight against the member of the
mint family. "It sure looks like there could be a market, based on the
amount he had", Lt. Bob Hass told reporters. "This is the first we've
seen of it." Hass did not return Chronicle calls for comment this week.

While salvia information web sites like Salvia.Net do place a single
dose of salvia leaf at between .25 gram and one gram, similar to County
Attorney Feland's estimate, intent to deliver still seems a stretch. "I
bought eight ounces of leaf on eBay by bidding $32 for it," said Rau.
"Now they're charging me with possession with intent. That's silly.
Nobody wants leaves. Everyone is buying those 10X and 20X and 30X
extracts." [Ed: Not to mention that on eBay one buys what is being
offered a sale, not half or a tenth or twentieth of it.]

Rau was also not impressed by the prosecutor's dosage estimates. "This
is a clear ploy to exaggerate the number of saleable units," he
complained. "These drug warriors have long used this ploy to make
dealers out of everyone. Accepting those figures, an ounce of Salvia
Divinorum would give 120 doses and make anyone holding an ounce of it
a dealer. This is ridiculous since an ounce is clearly the standard
saleable unit for leaf. Applying the prosecutor's standard marijuana
dosage and saleable quantity would be the amount that would fit in the
end of a pinch hitter. This standard would make anyone holding even an
eighth ounce of marijuana a dealer."

Rau also scoffed at the notion that anyone is going to be buying
fractions of an ounce of salvia leaf. "You can buy an ounce online for
as little as $10," he pointed out. "Who is going to split that up into
smaller quantities? Hell, you would probably end up spending more on
baggies that you did on the leaf," he said.

"This is ridiculous legislative overreaching," said Rau of the new
law. "They only based it on those wacky YouTube videos, and even on
those, you see people trying to abuse the stuff as much as possible
and ham it up, and it still doesn't hurt them. And why jump from
selling it in stores to making it a felony," he asked, "don't they do
misdemeanors anymore? I didn't even know it was illegal here, and with
their first prosecution they go for the max."

The local TV station's web site has inadvertently supported Rau's
point. At the time of this writing, an online version of the news
report about Rau's arrest was still pulling up salvia ads by Google.
Rau emailed the link to Drug War Chronicle, proving that the salvia
ads are showing up on computers in North Dakota.

A mild-mannered 46-year-old, Rau's interest in salvia derived from a
broader interest in herbalism, religion and spirituality, as well as
efforts to deal with his own inner demons. "I read that salvia
facilitates lucid dreaming, so I tried chewing some leaves before bed
time, and it was interesting because I would see faces and remember
names I had long forgotten."

He also tried salvia as a cure for depression. "I have some childhood
issues to deal with. They had me on Paxil," he said. "They want you to
take their pharmaceuticals, but if you want to take an herbal remedy,
they want to throw you in prison. Are they going to save me from
myself by throwing me in prison for years?"

Now, Rau is fighting for his freedom, but there aren't many resources
in North Dakota, and he doesn't even have a lawyer yet. "The ACLU
doesn't even list anyone in the state," he said. "I've emailed the
ACLU Drug Law Reform Project, but I haven't heard back from them yet."

Still, he said, his arrest has motivated him. "Maybe this is an
opportunity for me to join the fight," he said. "I've never been a
drug user, never been arrested. I started experimenting with this
stuff because I thought it was legal. I didn't want to get into
trouble, but now they're treating me just like some meth dealer."

Philip S. Smith is the executive editor of The Drug War Chronicle.