tupence_hapeny
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So, basic things ain't illegal? Ya reckon - LOOK
It has come to my attention that numerous contributor’s to this board suffer from what is to me a rather disconcerting lack of knowledge of the
legal restrictions as recently imposed upon amateur chemistry. I have chosen to challenge these preconceptions, using the legislative instruments of a
representative jurisdiction (nb. NOT one from which I am posting, but one from this region), which is in this instance: Queensland, Australia.
The majority of the relevant legislation in this jurisdiction is conveniently collected in one legislative instrument, the regulations pertaining to
the same, and of course the Criminal Code of Queensland (being for the uninitiated, the world’s first Griffiths Code, somewhat unsurprisingly
introduced by one, Sir Samuel Griffiths (ex-Chief Justice of the Australian High Court)).
As all other criminal codes were modeled upon this one, the rules of interpretation in each of the world-wide code jurisdictions will be basically
similar (please take advice from a qualified legal practitioner in your jurisdiction prior to relying upon the information provided herein, this
information is provided for informational purposes only).
So, technical preliminaries out of the way, let us proceed. The relevant legislation is the Drugs Misuse Act 1986 (QLD) [DMA] and the Drugs Misuse Regulation 1987 (QLD) [DMR]. These provisions are to be read with the Criminal Code 1899 (QLD) [DMA, s.116: nb. Subordinate legislation (ie. regulation) is ALWAYS read with its parent Act].
What is, and is not, prohibited is the question which I intend to answer, simply because that is what is relevant to what is and is not going to
impact upon amateur chemists (ie. read as applying only to persons to whom a research license is not going to be issued).
Now, the dominant statement, repeated time and time again on this board and others, is that unless it can be proved that a person had a combination of
items (being one or more) with the intention of producing controlled substances, which would have to be proved - that they would be safe from the law.
Unfortunately, this is not only fallacious, but it is seriously misguided. Certain items of equipment, such as one would expect to be in any mediocre
or better amateur chemists lab (whether or not the ‘lab’ seriously qualifies for that description), such as a splash head, condenser, reaction
vessel, etc [DMA, s.9A; DMR, Schedule 8B ), or certain chemicals (DMA, s.9A(1) & (2)(a)-(b)); DMR, Schedule 8A] are when a police officer reasonably believes it to be so, presumed to have been used for the production of a dangerous drug (in the
absence of a challenge, by you, bearing the onus of proof to the contrary against the Commissioner of the QLD Police Service – for which you will
need a fucking good lawyer (DMA, s.131B; DMA, s.131).
Importantly, if you are able to justify the existence of some, but not all, of the equipment, you are not entitled to be acquitted on the basis that
they failed to prove their case, but are to be convicted on the basis that you failed to prove yours (DMA, s.132). If this provision becomes operative, any money that you cannot prove that you have come by legally will be eligible for confiscation (NB
in fact your entire property becomes liable for confiscation, unless you prove to the contrary: DMA, s.33), while you face a maximum penalty of 15 years imprisonment (DMA, s.9A(1); also see DMA, s.10).
Please, take a close look at the hyperlinked legislative instruments before you attempt to naysay their effect. I am suitably adept at construing
legislative instruments that I feel comfortable in stating the accuracy of this post, so please, feel free to state that I am wrong, but also please
provide details of how and why…
I am not seeking to state that the law is wrong, that would be futile – the law is the law after all. I simply post this in order that those on this
board who try to suggest that such laws don’t exist should wake up and smell the roses, before they are no longer entitled to do so. Yes, these laws
are draconian, however, they are not at all dissimilar, either specifically or generally, from those elsewhere.
Either we start to make some noise now, or it will be way too fucking late, any one of us can be jailed now if we have these items, and DO NOT DOUBT
that we will be unless these laws are changed.
[Edited on 30-3-2007 by tupence_hapeny]
We are all the sum of our experiences, and our reactions to the same
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Sauron
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Sounds like you should consider moving to a free country. (Which sadly lets Aus and NZ out.)
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not_important
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| Quote: | Originally posted by Sauron
Sounds like you should consider moving to a free country. (Which sadly lets Aus and NZ out.) |
And many parts of the USA. Texas requires registration of glassware, Oregon and Washington have laws that "prohibit the illegitimate purchase of pure
iodine or concentrated iodine solution above 2 percent". HI is also a restricted substance, along with phosphorus. The Federal government has a case
going on that it appears to be winning that will restrict sales of | Quote: |
* Oxidizers: No more than one pound per customer per year.
* Fuels: None, unless they are larger than 100 mesh particle size.
* Tubes: None, unless they are 10 inches or longer
* Fuse: No more than 25 feet per customer per year
“Oxidizers” are defined as: ammonium nitrate, potassium chlorate, potassium perchlorate, potassium nitrate, sodium chlorate, sodium perchlorate,
sodium nitrate, barium nitrate, strontium nitrate, potassium permanganate.
“Fuels” are defined as: aluminum, aluminum alloys, magnesium, magnesium-aluminum alloys, antimony sulfide or trisulfide, potassium benzoate,
sodium benzoate, sodium salicylate, sulfur, titanium, zinc, zirconium, or zirconium hydride. |
Canada's federal government has proposed regulations that would require companies selling the restricted materials to "register with the government,
keep meticulous inventory records, and notify police if they believe a customer will use the materials to make bombs."
| Quote: |
* Ammonium nitrate in solid form, at a concentration of 28 per cent to 34 per cent nitrogen;
* Nitric acid at a concentration of at least 68 per cent;
* Nitromethane;
* Hydrogen peroxide at a concentration of at least 30 per cent;
* Potassium nitrate;
* Sodium nitrate;
* Potassium chlorate;
* Sodium chlorate; and
* Potassium perchlorate. |
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Sauron
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Was I proposing moving to USA? NO.
Would I define USA as a free country? "Answer hazy, ask again later"
For the parts of those restrictions that pertain to HI, red P, I2 blame the meth cooks. If there were no illicit meth traffic there would be no
official interest in HI or I2, although arguendo red P might still be of concern as a possible component in pyrotechnica I suppose.
And it is hardly surprising that some concern is paid to chlorates, perchlorates, nitrates, nitric acid, and nitromethane, is it now?
The particulars of how such regulations and laws are written may or may not be logical, effective, and/or draconian. They could be both draconian and
totally ineffectual (like some of the drug enforcement regs.) Remember what Churchill said?
"There are some things that one should not witness being made: laws and sausages." (Paraphrase but close.)
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tupence_hapeny
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Yeah, I get that, but are you honestly suggesting that, particularly in regard to the prohibition on condensers, splash heads, etc. that the average
(or even the advanced) 'meth' cook, particularly those utilising either the I2/RP or Birch reductions, would even know (1) what a condenser was, (2)
how to connect it; (3) how to use it; & (4) how that item was somehow connected to what they wished to accomplish?
It is now time to face facts, if the items I may or may not own make me a criminal regardless of intent, noone can be really suprised if I choose to
make the best of a bad situation. It is similar to the old saying: Cum catapultae proscriptae erunt tum soli proscripti catapultas habebunt (when
catapults are outlawed, only outlaws will have catapults), particularly given that an attempt to destroy or dispose of a prohibited item (such as
condensers etc) is to be construed as an admission of an intent to manufacture, (they don't even need to establish what it is you intended to make:
MDA, s.129.)
[Edited on 30-3-2007 by tupence_hapeny]
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Sauron
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I meant what I said and only what I said, I said not a word about glassware. I think bans on glassware are stupid, and I think all non-intent
violations are inherently inconsistent with the legal traditions that all English speaking nations derive their criminal codes from. No mens rae, no
crime, is the norm. Even the US rarely departs from that standard (primary exception being federal tax code based violations which include drugs and
firearms and explosives).
The burden of proof of mens rae (criminal intent) is on the prosecution.
If Australia is expanding non-mens rae vioilations on a wide scale then that is very much contrary to English common law.
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tupence_hapeny
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Yeah, it is.... Unfortunately, for those inveterate 'meth' cooks out there, best look up boys and girls, our governments seem determined to outlaw
actual amateur chemists. Perhaps it is an experiment? You know, just to see exactly what will happen to society once people with some knowledge
(limited - yet streets ahead of the tweeks) are outlawed?
Reminds me of a funny story, one of the Royal Australian Engineers best qualified and experienced combat engineers and demolitions experts, was
recently busted in the NT for having a small lab. It was fairly sketchy from all reports, but he was apparently busted after having ordered glassware.
Anyway, what happened is that the police demanded a custodial sentence which he received. What makes me laugh, is the fact that I would regard it as
particularly unlikely that (1) he will ever be busted again; (2) anybody lives through the next attempt to do so; and (3) that his next lab will be
small.
Ah well, when those outside the law outnumber those within, which is already happening, things will change. In fact Locke says that it is our duty to
make this happen, as happened in his time with the ship moneys case if I remember. Hopefully without violence, but I don't really care...
[Edited on 30-3-2007 by tupence_hapeny]
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joeflsts
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Governments could care less about the amateur chemist. The amateur chemist is just colateral damage.
Joe
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tupence_hapeny
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Ah yes, collateral damage.
Unfortunately I personally believe that the much lamented lack of trained chemists is directly attributable to the current status of amateur
chemistry. No longer are children encouraged to experiment with chemicals, and no longer is that even feasible, in fact in Australia at the present
time it is actually criminal in many cases.
So, unless a person learns at an early age the joys of making a combination of chemicals undergo a visible change (and that is where we all started),
why exactly would they have any desire to go into chemistry as a young adult? It's okay, we don't actually need chemists do we, we can just outsource
all of our research and development somewhere else, perhaps China? (What a truly novel idea)
No joeflsts, not taking the piss out of you, I am extremely angry about this shit that is all.
And Sauron,
Unfortunately the onus of proving an affirmative defence is, at common law and under cognate statutory provision, is upon the person (naturally enough
the defendant) seeking to rely upon that defence. The legislature has enacted this legislation in such a way as the Courts will approach any such
trial on the basis that the very ownership of the proscribed items is a prima facie criminal offence. It will then be for the person found in
possession of the same to establish some lawful excuse for having the same, subject to the statutory proviso that all such items are presumed to be,
or to have been, used in the manufacture of whatever the police officer says it was used for.
Basically, the defence must meet the sting of the allegation, so if the police officer reasonably believes that your purpose in having the equipment
(or chemicals) was to manufacture amphetamines (for instance), all you need prove is that you are in fact authorised to manufacture amphetamines. This
is what makes me so fucking angry about this legislation, as the capacity for investigators to lie in such instances in aptly demonstrated by this
case, Griffiths v Ballard [2005] NSWSC 1350 (22 December 2005) . Which I personally find immensely chilling.
Mr Griffiths, a qualified pharmacist, was arrested and charged with producing Methcathionone. The analyst in charge of establishing the identity of
the substance swore under oath that the substance was in fact methcathionone. Under cross-examination at Mr Griffiths trial it turned out the
substance did not identify as methcathionone, but that the analyst decided that close enough was good enough and falsified the certificate.
Does anybody still feel overly safe and/or complacent? This man was a legitimate chemist, yet he was FRAMED because police
decided he was producing a dangerous drug, basically because in their veiw he could have done so. As to the ability of police to lie and cheat in
criminal trials, see this one:
Duke v State of New South Wales & Ors [2005] NSWSC 632 (30 June 2005)
Another person framed by police with drugs. Fucked if I feel all that safe.
Tup
[Edited on 31-3-2007 by tupence_hapeny]
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12AX7
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Well, you know what you have to do now: indeed, it is your civic duty and your livelihood to spread the word. Call
the newspapers, television affiliates, news programs, whoever will hear your cries! Pity always fares well on TV. (And yeah, just in case, you might
want it in written form that they present your case in an acceptable manner.)
Tim
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Pyridinium
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I agree completely with your sentiments, Tupence.
Things have gotten ridiculous. There is a little too much apology going on in the form of "well, but that's the law". While I don't advocate
breaking the law, I'll say this. Law that has become uncoupled from the concept of crimes against persons or property is flimsy enough, but when it
gets to the point that someone can get years in jail for owning a distilling apparatus or a 3-necked flask, that is when "the law" loses all
credibility-- the velvet glove is gone, and it's no more than an iron fist that blots out the sun as it hangs over the heads of its victims. At that
point it's no longer got any sort of high ground, moral or otherwise; it has only the concept of "might makes right".
You are also correct that the police are capable of planting drugs at a scene, and it has happened numerous times. Evidence tampering and forensic
lab mistakes are rampant. I don't really know what to say about this, and yes it is scary.
12AX7 is right, we need to make noise about this. Talking on message boards like this is preaching to the choir; we need to express our concerns
everywhere we can, in as eloquent terms as possible.
For those who would like to give up and roll over, saying governments don't care about amateur chemists (joeflsts), I advise you give up amateur
science now, while you're ahead, or else get really good at hiding your hobby.
Quitters never win, and winners never quit. What kind of help your cause gets from government depends on how much of a stink you can make. There
was a time when environmentalists were a small minority, but they made up for it by making a lot of noise and having good organization.
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Fleaker
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"Importantly, if you are able to justify the existence of some, but not all, of the equipment, you are not entitled to be acquitted on the basis that
they failed to prove their case, but are to be convicted on the basis that you failed to prove yours (DMA, s.132). If this provision becomes
operative, any money that you cannot prove that you have come by legally will be eligible for confiscation (NB in fact your entire property becomes
liable for confiscation, unless you prove to the contrary: DMA, s.33), while you face a maximum penalty of 15 years imprisonment (DMA, s.9A(1); also
see DMA, s.10)."
Sounds like a catch-22 if I've ever heard one. This is ridiculous, but these are ridiculous times. Fifty years ago, no one would even blink at seeing
a home laboratory; today, even if legitimate, you're asking for trouble. In the United States it is not so bad as Australia, at least not yet. If I
was the prosecutor on the Griffith's case I would feel ashamed for wasting taxpayer money and the time of the judge if I didn't have an airtight case.
I think there ought to be some mentioning of this, but in reality, until all of those damn illicit chemists stop profiteering of off our misfortune, I
don't even think there can be changes.
Neither flask nor beaker.
"Kid, you don't even know just what you don't know. "
--The Dark Lord Sauron
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12AX7
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| Quote: | Originally posted by Fleaker
I think there ought to be some mentioning of this, but in reality, until all of those damn illicit chemists stop profiteering of off our misfortune, I
don't even think there can be changes. |
No one even KNOWS of our misfortune! Drug lab this and drug lab that, no wonder chemicals are bad!
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Chris The Great
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Well, if we all made drugs, not only would we get over our financial woes, but we'd know that when we're being hauled off to court for manufacturing
that we had done our part to make sure the cops weren't lying about it.
(mostly sarcastic...)
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tupence_hapeny
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unfortunately, while other amateur chemists are willing to accept blindly the worst version of events in relation to every lab that is discovered -
they must have been doing something wrong or illicit or illegal - without accepting that what they have in their own shed is similarly illegal under
the current regime, nothing will change.
The way things are going, it will be necessary for complete background checks (at our expense) and psychological testing before we are able to even
think about chemistry at all. However, for those who suggest that this will solve the problem, pharmacists go through similar license conditions, and
Mr Griffiths (see above) didn't escape suspicion.
We are all the sum of our experiences, and our reactions to the same
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Dr.3vil
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paranoia
ugh....we have degraded to a point of living in fear. (that means they won) i suggest the following reading material...namely the search warrant...
http://www.thesmokinggun.com/archive/0428062dea1.html
there is a reason for list 1 and 2....when LE sees you buying the shit (mostly list 1)...that gives them ammo to go see a judge, who signs off on the
"no-knock" warrant and your door gets kicked in.
for the record, how many of us have had a visit from LE???? if you have...then what was it you purchased and was it on a list. (glassware excluded).
has anyone in the group even been CHARGED with felony manufacture?????? let alone convicted???
what about just being open about what we do?? "so what hobbies are you into?" "oh, im a private inventor and amateur scientist" there are countless
chemical suppliers that sell to the public...place phone orders, build a working relationship. dont act shady!!!
I could go on and on about how asinine the drug war is, but i'll leave it at this.... If you have not committed a crime...then no matter what, you'll
be ok. yes, you may get served...keep you mouth shut and ask for a lawyer. dont be afraid to accept the fact that you may have to convince a jury.
keep a lab note book that shows how chemicals were used and keep a neat lab.
good day sir!
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chemrox
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home labs
even thirty years ago a lot of chemists had home labs. Now the practice of having a home lab is practically illegal in the US and certainly amateur
chemistry is for all intents and purposes illegal. What is truly amazing is after the failure of prohibition and the resultant emergence of criminal
empires the US still chosses this aproach. It is an attribute of the Puritan heritage that won't allow the experience of pleasure as a legitimate
activity. Moreover the possibility of repairing or ameliorating a biological shortfall of certain agonists is dismissed outright because that could
lead to a non-religeous approach to the experience of ecstacy. Clearly the US government's main objective is to control all mood enhancement agents,
psychedelics and pain killers. MAPS is tolerated because most of the work there is academic and supported by government grants. The supreme irony is
that most of the grants and contracts awarded to chemists making psychoactive substances come through the DEA. Its about control. If you have the
money and time to jump through all the hoops and make the capital improvements they require, you can get a DEA license to do drug discovery work and
get DEA to fund some of it. Similarly you can probably go a similar route with DOD amd energetic stuff. About the only way to be free of paranoia
and free to work in an unimpeded environment is to have an academic postion with an understanding school or a drug discovery position with a pharm
chem company. When I was a lowly ug at Berkeley they had the TA's brainwashed to look for druggies and at the same time Sasha Shulgin was down the
hall teaching his famous toxicology course. US is really schiz! But not free .. not in any way except possibly self-defense rights in some states.
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pantone159
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The warrant was interesting reading indeed, very many (almost all) items on that list are stuff that any hobby chemist would find useful, rotovap,
melting point apparatus, addition funnel, precision scale, MnO2.
Some, however, indeed suspicious, e.g. tableting machines, sassafras oil, diethylamine (not for MDMA though!).
However, what on that warrant was List 1 or 2? Maybe the tableting stuff (not sure) but none of the chems - to my knowledge, although safrole is List
1, just sassafras oil doesn't count, and is not List 1 (but it is surely watched).
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evil_lurker
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Dr.3vil is right... what got the guy busted was the 16oz of sassafras oil, pill press, sodium hypophosphite, all of which are DEA regulated items...
hell any LE agent worth two farts and a shit could clearly put two and two together to come up with the conclusion that there is probable cause to
suspect an ectstacy lab going on.
One thing that should be know by all those in the USA, if LE catches wind of the fact that you are into chemistry, they WILL look into your finances,
tax records, and especially bank accounts and credit card transactions. I shit you not, and have seen convictions and sentences for drug manufacturing
just because an individual recieved a certain chemical. In the laws eyes, if you get busted for manufacturing, merely having possessed a
controlled chemical (even by signing for it) at one time is sufficiant evidence to establish a prima facea case that you manufactured XX quantity of
certain chemicals.
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12AX7
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Ya know what, it occurs to me that "possession" is a "gateway drug\\\\law" that extends then to chemicals such as precursors (and pre-precursors!).
Drugs are just chemicals, after all.
If they can ban those specific drug chemicals, why not also the chemicals they are made from? Therefore, possession of precursors implies intent to
assemble the final product, which is a criminal act. And then what next? There is no basis for this badly construed logical fallacy and where to
begin or logically end it. If they even limited it to acts such as selling or producing, but not possession (of the drug or precursors), things would
be a lot better, at the very least in terms of number of arrests.
I wonder if we could gather interest from the academic foundations, too. I mean, it's been said many times here that ameteur chemists (if not always
shining examples of chemical practice themselves) often go on to be big-shot chemists, highly valuable today. Therefore, there is good reason to
promote ameteur experimentalism.
Tim
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tupence_hapeny
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| Quote: | Originally posted by Dr.3vil
ugh....we have degraded to a point of living in fear. (that means they won) i suggest the following reading material...namely the search warrant...
http://www.thesmokinggun.com/archive/0428062dea1.html
there is a reason for list 1 and 2....when LE sees you buying the shit (mostly list 1)...that gives them ammo to go see a judge, who signs off on the
"no-knock" warrant and your door gets kicked in.
for the record, how many of us have had a visit from LE???? if you have...then what was it you purchased and was it on a list. (glassware excluded).
has anyone in the group even been CHARGED with felony manufacture?????? let alone convicted???
what about just being open about what we do?? "so what hobbies are you into?" "oh, im a private inventor and amateur scientist" there are countless
chemical suppliers that sell to the public...place phone orders, build a working relationship. dont act shady!!!
I could go on and on about how asinine the drug war is, but i'll leave it at this.... If you have not committed a crime...then no matter what, you'll
be ok. yes, you may get served...keep you mouth shut and ask for a lawyer. dont be afraid to accept the fact that you may have to convince a jury.
keep a lab note book that shows how chemicals were used and keep a neat lab.
good day sir! |
I wish I felt as comfortable as you sir, however, referring to Griffith's Case, the difficulty there is that the analyst was prepared to state
categorically and under oath that the material was a dangerous drug and had been proved to be so under analysis - despite knowing that to be untrue.
The real difficulty is that in most jurisdictions, an analyst's certificate is as a result of legislation unimpeachable and presumptively accurate.
This apart from the fact that any person placed in front of a jury is in a bad position credibility wise - obviously, you wouldn't have been arrested
unless police though that you were naughty - would you?
Quite frankly, Griffith's got believed because he too was a professional chemist and he was able to base his argument on the proper test procedures
and the potential problems therein. Simply put, where the jury has the opposing views of two professionals (and we love to believe professionals don't
we?), where the opposing arguments are of equal weight - there will be a reasonable doubt. Unfortunately, they are unlikely to afford a hobbyist or
amateur the same credulity, and despite the merits of the case, are rather unlikely to be convinced.
Good day to you Sir
We are all the sum of our experiences, and our reactions to the same
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