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Shaky Evidence: South Dakota Unique in Prosecution for Drug Remnants in Body

Regular readers know I'm a teetotaler: no alcohol, no tobacco, and certainly no dope or other illegal drugs. Seeking altered states of mind through chemicals wastes time and money and far too often leads to trouble. That's my line as a dad, and to keep from giving my little one mixed signals, my political line hews closely thereto. I'm pretty sure some drugs should be illegal, though I'm open to debate on where to draw the lines of bans and regulations.

But as in any legal realm, if we're going to prosecute folks for using drugs, we need to prosecute them on reliable evidence. Adam Hurlburt of the Black Hills Pioneer reports that South Dakota is the only state in the country that uses remnants and metabolized by-products of restricted drugs as evidence for felony drug prosecutions. Lawrence County public defender Matthew Pike says using such evidence is unreliable and unconstitutional.

Pike has appealed to the South Dakota Supreme Court a case in which a client was prosecuted for felony possession of cocaine based on the presence of benzolecgonine in his urine. Pike maintains that evidence does not prove criminal activity in South Dakota:

Benzolecgonine is a metabolite of cocaine that can remain in the body for up to three days after ingestion of cocaine or any coca leaf-based substances, including decocainized coca leaf tea, which is legal both federally and in the state of South Dakota. Pike says the substance may also be found in some over-the-counter medications and even tap water.

Pike says it’s impossible to prove exactly how benzolecgonine ended up in his client’s system, and even if Whistler had knowingly imbibed cocaine, it would be impossible to prove that he’d done so in South Dakota based solely on the detection of benzolecgonine in his bodily fluids [Adam Hurlburt, "SD Supreme Court Case Could Alter Interpretation of State Drug Law," Black Hills Pioneer, 2014.03.28, updated 2014.04.02].

Pike raises a good question: there appears to be reasonable doubt about the reasons metabolites like benzolecgonine might be in anyone's bloodstream. How high should the bar be for drug prosecutions? Should we allow law enforcement to prosecute individuals based on the contents of their bodily fluids? Or should we declare our bodies, like our minds, off limits to investigation (Fifth Amendment, anyone?) and require prosecutors to rely solely on external evidence of illegal drugs themselves?


  1. Bill Dithmer 2014.04.05

    Man I just love a question like this. Cory for the record every person reading this has an addiction of some kind. For some, it might be alcohol, for others it might be nicotine for some it might be drugs of either the illegal kind for prescribed. for some it might be television, for some it might be gambling, for some it might be sex, and for some it might be the addiction to social media.
    I doubt that we will ever be able to use Fifth Amendment for protection against invasion of body privacy issues. All you have to do is look at the continued encroachment into womens body issues. The use of trans vaginal probes and ultrasounds for the extreme purposes of invading a woman's body should tell you all you need to know about Fifth Amendment rights.

    The Supreme Court has very rarely ruled correctly in cases involving either the 4th or 5th amendment. They have instead given prosecutors a go 2 and get out of court free card. The justices do this knowing full well the effect of ruling otherwise would have on past , future, and present, court cases, many of which are drug related.

    I find it illogical to assume that we can draw a line this late in the Justice game. We can however through applied science gain a better practical solution to crimes being prosecuted for drugs. For example, in the not too distant future scientist will be able to determine the exact place of origin: of THC in a persons system. That's right they will be able to tell from what dispensary it came from and the exact plant that it came from. The record keeping for medical marijuana is that exact.

    The Blindman

  2. mike from iowa 2014.04.05

    We could also do ballistic fingerprinting of weapons and find out where and when guns were bought and/or sold legally or otherwise. But the NRA messed their diapers over registering killing machines. Not cricket,what? Drug laws need vast re-working and some common sense for a change.

  3. Lanny V Stricherz 2014.04.05

    Bill, Women are not the only ones having their bodies violated. I had my knee replaced 5 years ago this coming fall. I have flown 6 times since then. Each time the body search has been more invasive, to the point that I don't think that I will ever fly again. I got a card from the surgeon saying that I had a titanium knee. When I showed it to the security people at the time of check in, they told me that and a buck and a quarter would get me a cup of coffee.

  4. Douglas Wiken 2014.04.05

    Prosecution and sentencing are insane in South Dakota. Janklow drove past a stop sign and killed somebody while apparently having his mind fuzzed by not taking insulin or whatever...and got a few days in jail.

    Judges sentence people to years in prison for embezzling a few thousand dollars. Others stealing much more get probation only. It would make a lot more sense to require embezzlers to never work again where they have access to OPM. And then require them to work for a year or two at regular wage in a nursing home or other similar facility until they repay TWICE what they embezzled. It makes no sense for taxpayers to spend $100,000 to keep an embezzler in prison when they are in no way any other kind of threat to society.

    I like Cory don't drink alcohol and have never used any other mind altering drugs except coffee. But, it is obvious that alcohol is much more of a threat to everybody who walks or drives than is pot. The only difference is the state gets taxes from alcohol that don't even cover a third of the social costs related to alcohol.

    Courts and prisons have become an industry that is very expensive for taxpayers and very rewarding for judges and others aiding and abetting the system.

    A recent investigator on SDPB-Radio noted it was time to get smart about crime instead of being tough on crime...even when the "criminal" is often completely innocent.

  5. Mike Armstrong 2014.04.05

    Drug testing is very effective. It catches lots of cannabis users, since cannabinoids remain in fatty tissue for around 28 days. This allows us a tool to induce cannabis users to switch to other euphoriants. Chemists have responded to the demand by inventing some very interesting products erroneously known as "synthetic marijuana". Users fill our mental institutions , prisons, and cemeteries. Let's test everyone, early and often!

  6. Les 2014.04.05

    The school age kids tell me the illegal pot is at times or often laced with Meth. I'd much rather the gateway drug continue to be alcohol than the laced pot or syn pot as Mike speaks of above. That will only happen with controls on a legal product.

  7. Adam, who pays taxes in South Dakota 2014.04.06

    Mr. Armstrong, I'm not sure you read the entire article above. The effectiveness of drug testing is not being questioned here, it's what the state of South Dakota does with that information after it's gathered.

    In the case in question police officers found trace amounts of Benzolecgonine, a metabolite of cocaine and other coca leaf-based substances in the defendant's urine after arresting him for a suspected DUI and possession of marijuana. The defendant was convicted on felony possession of cocaine based solely on this — no cocaine or related paraphernalia were discovered on the man or in his vehicle, he had no priors, and the officers did not notice any speedy behavior indicative of cocaine ingestion in him the evening of his arrest and subsequent piss test. Let me reiterate, cocaine was not found in, on, or around the defendant, only its metabolite, Benzolecgonine.

    1. Benzolecgonine can remain in the body for up to 72 hours after cocaine consumption.
    2. Benzolecgonine can show up in urine or blood after the consumption of decocainized coca leaf tea, which is not only federally legal, but specifically mentioned as legal in South Dakota codified law.

    Related Questions:
    1. If the source of the benzolecgonine in the defendant's urine was indeed the byproduct of his deliberate consumption of cocaine and benzolecgonine can remain in the body up to 72 hours after cocaine ingestion, how can South Dakota's bulging legal arm be certain the defendant possessed or even imbibed this cocaine within state lines and legal jurisdiction?
    2. If state and federally legal decocainized coca leaf tea metabolizes into benzolecgonine in the human body, how can the state be certain that individuals with benzolecgonine in their urine or blood knowingly imbibed cocaine and not a few cups of legal tea?

    I drink decocainized coca tea from time to time. It's a less-jittery alternative to coffee that also does wonders for headaches and stomach aches. I also highly recommend bringing a few bags along when hiking at higher altitudes as it's nature's own very effective cure for altitude sickness. If I take a piss test a day or so after drinking a few cups of tea there's a good chance benzolecgonine will show up. I would be less than thrilled to be charged with possession of cocaine for legally imbibing a legal substance.

    Whether the defendant actually imbibed cocaine before he was arrested that night is of no consequence anymore; the defendant's illicit behavior is no longer under review, it is the interpretation of the law itself.
    Important stuff.

    Here's a link to the legal briefs on the case for those interested:

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