Historical discussion: The account below concerns Spice litigation and regulations in 2009–2010. It is not a statement that the same regulatory wording or alleged loophole controls today. For a current case, the actual substance and its controlled status must be established. Article 112a can apply to covered controlled substances; a separate Article 92 theory requires an applicable lawful order or regulation. Lack of knowledge must be assessed against the charged offense and evidence.
The possession, use, and transfer of Spice violate:
- Articles 112a if the mixture contains HU-210 or another controlled substance.
- Article 92 if it is prohibited by policy or regulation.
The "lack of knowledge" defense is a good defense if the client is charged with an Article 112a offense because the Spice was laced with an "unknown" controlled substance.
Intoxication by Spice can be a violation of Article 92 or Article 134. If the state law prohibits use of Spice, you may be charged under Clause 3, Article 134 (using the Assimilative Crimes Act). If you are charged, contact us to fight for your rights.
Army Regulation 600-85, para. 4-2p, prohibits the use of analogs of Schedule I and II controlled substances "for the purpose of inducing excitement, intoxication, or stupefaction of the central nervous system." The USACIL Bulletin, Issue III, September 2009, says the manufacturers of Spice found an ingenious way around laws used to control analogs of Schedule I and II controlled substances: they "used chemicals that mimicked the effects of psychoactive substances but that was, amazingly, not structurally similar to them." However, the authorities may bring changes to this regulation to beat this loophole.
In the Spring of 2010 we were successful in winning a motion declaring the Army order prohibiting Spice on Okinawa unlawful. In that sweeping decision, the military judge commented that AR 60085, para 4-2p may also be unlawful as applied to Spice. At the time, we were awaiting the opportunity to litigate this issue.