Saturday, July 18, 2009

Is Jolly Facing Prosecution for Having Too Much Dr. Pepper In His Cough Syrup?

Back from vacation and I have a little catching up to do. I have been following the Johnny Jolly legal farce with great interest. I have a couple posts coming up on this topic.

First things first: I think the media has mixed-up the facts a bit. Jolly is not charged with possessing 200 grams of codeine---an insane amount equivalent to "a couple years worth for someone that has a serious pain disorder." Rather, Jolly is charged with possessing a 200 grams of a liquid that contains a very small (by orders of magnitude) fraction of codeine.

Under Texas law, a controlled substance includes "adulterants or dilutants" which are "any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance." To convict Jolly, the prosecution must prove that he:

(1) possessed (2) a mixture containing not more than 200 milligrams of codeine and any of its salts per 100 milliliters and per 100 grams, that also (3) contains one or more nonnarcotic active medicinal ingredients (4) in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone, (5) weighing by aggregate weight, including any adulterants or dilutants, more than 200 grams and less than 400 grams.

Soda is considered an "adulterant."

The purpose of the adulterant rule appears to be to not let off the hook an unscrupulous drug dealer (are there "scrupulous" drug dealers?) that cuts his product with impurities. The bizarre consequence for these purple prosecutions is that (as best I can tell) the defendant is punished more severly based upon the amount of soda that he or she uses to dilute the cough syrup.

If you are on sitting on the front porch relaxing with 27.9 grams of cough syrup, the most you can be charged with is a Class B Misdemeanor (punishable by the still way too extreme six months in jail). If you mix that same cough syrup with 172.1 grams of Shasta, or Canada Dry, or Chocolate Milk you are committing a Second Degree Felony punishable by not less than 2 years in lockdown---and up to 20 years in the joint.

(Digusting factoid: rape is also a Second Degree Felony in Texas. That's right possessing cough syrup without a prescription is treated as harshly raping another person.)

But here is the apparent catch: the prosecution must prove that liquid contains one "or more nonnarcotic active medicinal ingredients [here: an anti-histamine called promethazine] in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone."

Thus, as the cough syrup becomes more and more diluted with soda, at some point the levels of promethazine will be so low as to no longer be "in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone." At that point, the liquid no longer meets the statutory definition.

At least that is the best I can make out.

So what is the deal with the prosecution dismissing the case to allow technicians to learn how to use a piece of equipment that can measure the amount of codeine in a liquid?

Harris County lost an appeal last last year in a case called Massie v. Texas because the prosecution could not prove the percentage of codeine or promenthazine in a soda bottle. The prosecution's theory was that the actual concentrations did not matter: all that mattered was that there was some amount of codeine and promenthazine in an Orange Crush concoction and that in total it exceeded the 200 gram threshold.

The Court of Appeals disagreed, holding that the prosecution must still present evidence that the concentration of codeine is less than 200mg/100 mL. In addition, the prosecution must present evidence that the promenthazine is present in sufficient quantity to "confer on the mixture valuable medicinal qualities."

I suspect (and this is an educated guess only) that as a result of this case and perhaps other similar cases, Harris County was forced to buy new equipment capable of measuring the quantity of codeine and promenthazine in a liquid. That is what the dismissal was all about.


For fun and to drive home the point that Jolly is not accused of possessing the equivalent of several years worth of codeine, I did some back-of-the-envelope calculations:

Promethazine and Codeine is manufactured in concentrations of 10mg/5mL.

10mg/5mL x 20,000/20,000 = 200,000mg/100,000mL= 200g/100L

Put another way, it would take 100 liters of prescription strength cough syrup to get 200 grams of codeine. Those styrofoam cups would have looked like this picture from The Onion:

In addition, the LD50 (i.e., the dosage that would kill 50% of those who consumed it) for codeine is 800 mg. 200 grams of codeine would be 250 times the dosage that would kill an average human being.

Jolly is not and was never charged with carrying around such an insane amount of codeine.


  1. "...raping another person..."

    Is it possible to rape someone who's not "another person?"

  2. Well, I suppose you could rape an animal or gourd. But that's not what I was getting at. The point was to draw a distinction between a victimless crime (which is an oxymoron) and and actual bona fide victimFUL crime.