Using controlled substances isn't illegal? Any truth in that rumour?

Sasqwhat

I've heard this a few places now: Irish law controls possession of substances, but not their actual use.

For example, citywide[dot]ie/decriminalisation/ireland/the-law-in-ireland.html says, "Drug use in itself is not generally a crime under Irish law but possession of a controlled drug, without due authorisation, is an offence under Section 3 of the Misuse of Drugs Act 1977. "

But that's not a particularly authoritative source.

Certainly the Misuse of Drugs Act doesn't use words like 'consume', whereas comparable acts from other countries do.

But then shure isn't this inconsequential as consumption always involves possession? Or not? Is there any case law on this question?

Victor

Essentially, you can be prosecuted for possessing a drug, not for having already consumed it.

Note that some drugs may remain in your body for some time after consumption. You may have consumed it in another jurisdiction or have consumed it innocently.

Peregrinus

What Victor says. The result is that simply being high, etc, is not, in itself, an offence. (Being under the influence coupled with other factors, of course, may be — e.g. being under the influence while in charge of a car.)

Obviously being high gives rise to a suspicion that you have committed the offence of possession. You could be high because, e.g., you were fed a hash brownie by somebody else, but such cases are comparatively rare. But suspicion that you probably possessed a controlled substance in the past is not enough to secure a conviction for possession; the guards would need actual evidence of possession, not merely evidence of being under the influence.

Sasqwhat

PM me if you know of a precedent of someone getting off the hook because they had 'only used' controlled substances.

Victor

Sasqwhat wrote: »

PM me if you know of a precedent of someone getting off the hook because they had 'only used' controlled substances.

How many substance users do you see getting arrested for having used only? Not including possession or say, traffic offences or public order offences.

Note that "use" is somewhat narrow and possession much broader. Possession extends from the point you take it into your control / possession to the last of it is disposed of. If you are smoking a joint, use extends from the point you take the first drag to the last of it is smoked / disposed of.

Witcher

Sasqwhat wrote: »

PM me if you know of a precedent of someone getting off the hook because they had 'only used' controlled substances.

You can't 'get off the hook' for it because it's not an offence, you don't seem to understand this....

punisher5112

Where one would fall foul is if in charge of a motor propelled vehicle and over the limit such as through drink or drugs.

Sasqwhat

Victor wrote: »

How many substance users do you see getting arrested for having used only? Not including possession or say, traffic offences or public order offences.

Indeed. It's a weird case. All cases are weird in some way.

Sasqwhat

Witcher wrote: »

You can't 'get off the hook' for it because it's not an offence, you don't seem to understand this....

That's exactly why you can get off the hook for it. Lots of cases of people being exonerated because the thing they were charged with wasn't illegla.

Sasqwhat

Sasqwhat wrote: »

That's exactly why you can get off the hook for it. Lots of cases of people being exonerated because the thing they were charged with wasn't illegla.

You can’t be charged with something that isn’t on the statute books.

ohnonotgmail

Sasqwhat wrote: »

PM me if you know of a precedent of someone getting off the hook because they had 'only used' controlled substances.

you wont find any precedent for this.

Sasqwhat

ohnonotgmail wrote: »

you wont find any precedent for this.

Why not?

ohnonotgmail

Sasqwhat wrote: »

Why not?

because the case would never get to court. there is no offence of ingesting illegal drugs so there is nothing to be charged with.

Sasqwhat

ohnonotgmail wrote: »

because the case would never get to court. there is no offence of ingesting illegal drugs so there is nothing to be charged with.

Catch-22

ohnonotgmail

Sasqwhat wrote: »

Catch-22

I'm pretty sure that is not a catch-22. one thing following logically from another is not catch-22

Sasqwhat

Anyway, if someone does find a precedent where the judge ruled that they 'only used' and that's not an offense so the charges aren't valid, PM me. I'll offer a reward if that's not against board rules.

Witcher

Sasqwhat wrote: »

Anyway, if someone does find a precedent where the judge ruled that they 'only used' and that's not an offense so the charges aren't valid, PM me. I'll offer a reward if that's not against board rules.

You're not listening...it's not an offence...there are no possible charges.

It's not an offence, you won't be arrested for it, you won't be charged for it, you won't be in court for it. It's like looking for precedent to get you out of wearing two odd socks.

ohnonotgmail

Sasqwhat wrote: »

Anyway, if someone does find a precedent where the judge ruled that they 'only used' and that's not an offense so the charges aren't valid, PM me. I'll offer a reward if that's not against board rules.

even if it did somehow end up in court there would be no precedent. It would end up in the district court where there are no written judgements and precedents are not set.

Victor

Sasqwhat

Witcher wrote: »

You're not listening...it's not an offence...there are no possible charges.

It's not an offence, you won't be arrested for it, you won't be charged for it, you won't be in court for it. It's like looking for precedent to get you out of wearing two odd socks.

I'm listening.



There's lots of cases where the defendant is found not guilty because there's no law under which to convict them. (e.g. a 2010 case against UPC by EMI Records (Ireland), Sony Music Entertainment (Ireland), Universal Music Ireland, Warner Music Ireland and WEA International was thrown out because there was no law)


If you can find a case where the judge said there's no law against simple use of controlled substances, I'll give a handsome reward if mods are okay with that.

ohnonotgmail

Sasqwhat wrote: »

I'm listening.



There's lots of cases where the defendant is found not guilty because there's no law under which to convict them. (e.g. a 2010 case against UPC by EMI Records (Ireland), Sony Music Entertainment (Ireland), Universal Music Ireland, Warner Music Ireland and WEA International was thrown out because there was no law)


If you can find a case where the judge said there's no law against simple use of controlled substances, I'll give a handsome reward if mods are okay with that.

nobody will be able to claim that reward.

Sasqwhat

Sasqwhat wrote: »

I'm listening.



There's lots of cases where the defendant is found not guilty because there's no law under which to convict them. (e.g. a 2010 case against UPC by EMI Records (Ireland), Sony Music Entertainment (Ireland), Universal Music Ireland, Warner Music Ireland and WEA International was thrown out because there was no law)


If you can find a case where the judge said there's no law against simple use of controlled substances, I'll give a handsome reward if mods are okay with that.

Are you using copyright infringement as proof?

This is ridiculous. It's not a crime. So please, what is it that you think you could be charged with?

Only section 3 which is for being in possession of and that requires;
A, the Gardai to have taken drugs from you
B, the Gardai bring able to get the drugs tested

Considering that's simple not possible in the case of usage, what's your actual issue here?

How can there be a defence of "I used it only" in such a scenario? are you suggesting that you smoked something that someone else was holding and this is your defence? Is that it?

Sasqwhat

Niner leprauchan wrote: »

Are you using copyright infringement as proof?

This is ridiculous. It's not a crime. So please, what is it that you think you could be charged with?

I'm not worried about being charged with anything. I'm looking for precedent to reinforce the possess/consume distinction that theoretically exists in Irish law.

Niner leprauchan wrote: »

How can there be a defence of "I used it only" in such a scenario? are you suggesting that you smoked something that someone else was holding and this is your defence? Is that it?

Nope.

ohnonotgmail

Sasqwhat wrote: »

I'm not worried about being charged with anything. I'm looking for precedent to reinforce the possess/consume distinction that theoretically exists in Irish law.

there is nothing theoretical about it. there are laws against possessing certain drugs. there are no laws against consuming those same drugs.

I didn't say you were worried, I asked you straight questions.

You were using copyright cases as backing to your argument. Again, there's no mischief here, the law is pretty straightforward.

The only way for your views to be tested would be if someone was charged with s3 offence having consumed a drug prior to Gardai arriving or possible in the company of Gardai.

I don't believe that's ever happened so there's no case to point to. Anyone swallowing drugs when being searched (as an example) is charged with obstruction.

Therefore, there cannot be proof because everyone understands the distinction in law. Or at least I'm not aware of any idiot trying as3 charge without physical evidence being found

Fyi, there is no theoretical legal distinction, it's a plain language distinction. The words mean two different things.

Spook_ie

Just as a thought along similar lines, if you were sharing a drug session of some kind could the owner of the drugs (even if the drugs no longer existed because they'd been consumed ) be charged with administering a controlled substance?

cobhguy28

Sasqwhat wrote: »

I'm listening.



There's lots of cases where the defendant is found not guilty because there's no law under which to convict them. (e.g. a 2010 case against UPC by EMI Records (Ireland), Sony Music Entertainment (Ireland), Universal Music Ireland, Warner Music Ireland and WEA International was thrown out because there was no law)


If you can find a case where the judge said there's no law against simple use of controlled substances, I'll give a handsome reward if mods are okay with that.

That was a civil case, completely different.

Spook_ie

Spook_ie wrote: »

Just as a thought along similar lines, if you were sharing a drug session of some kind could the owner of the drugs (even if the drugs no longer existed because they'd been consumed ) be charged with administering a controlled substance?

That's a matter for the medical bureau I think so highly unlikely.

cobhguy28 wrote: »

That was a civil case, completely different.

Don't be using reality against the op

Sasqwhat

cobhguy28 wrote: »

That was a civil case, completely different.

oh because one party sued another?

Peregrinus

Sasqwhat wrote: »

If you can find a case where the judge said there's no law against simple use of controlled substances, I'll give a handsome reward if mods are okay with that.

You have to start by finding a case where somebody was charged with simple use of a controlled substance. If nobody is every charged with simple use of a controlled substance, then no judge will ever get the chance to throw the charge out.

So, if you can find no reports of cases in which a judge threw out a charge of simple use of a controlled substance, the simplest, most logical and most likely explanation for that is that nobody has ever been charged with simple use of a controlled substance, because that's not an offence known to the law.

I'm not sure why you're having difficulty grasping this.

Spook_ie wrote: »

Just as a thought along similar lines, if you were sharing a drug session of some kind could the owner of the drugs (even if the drugs no longer existed because they'd been consumed ) be charged with administering a controlled substance?

Yes. Supplying a controlled substance is an offence. In most cases the charge is brought against dealers, but the offence is committed regardless of whether the controlled substance is sold or given away freely.

So, to continue the example I used earlier, I bake hash brownies and serve them to my friends. My friends commit no offence, but I do.

Sasqwhat

Don't be dense. Someone could be charged under section 3, and the judge could say they just used it. How are you not getting this?

Peregrinus

Sasqwhat wrote: »

Don't be dense. Someone could be charged under section 3, and the judge could say they just used it. How are you not getting this?

Sol you're looking for somebody who is charged with possession, but is acquitted because there is no evidence of possession?

I'm sure that happens fairly frequently, but you won't find it as a precedent, because the s. 3 offence is dealt with in the District Court, whose decisions do not set precedents and whose records do not include the reasoning behind the verdict.

I think what you need is the following sequence of events:

1. Someone is charged with possession.

2. At the trial, the only evidence against the accused is that they were observed to be under the influence. The prosecution argues that this proves prior possession.

3. The District judge convicts.

4. The defence appeals, arguing that the conviction is unsustainable because possession was not proven.

5. The appeal is fought all the way to the Court of Appeal, where a precedent will be set, and the reasons for affirming or overturning the conviction will be reported.

If you can't find such an appeal, the obvious explanation is that (a) the prosecution authorities don't bring a possession charge where the only evidence of is of being under the influence, because a conviction is unlikely; or (b) if the prosecution does bring such a charge, an acquittal results; or (c) if the prosecution does bring such a charge and there is a conviction, the conviction is overturned on appeal to the Circuit Court.

There'd have to be a series of fairly fundamental errors before this question would ever get to the Court of Appeal for a precedent to be set. Being under the influence isn't an offence; therefor nobody should be charged if the only evidence against them is that the are under the influence. If they are charged, they should be a acquitted in the District Court. If they are convicted in the District Court, they should be acquitted on appeal to the Circuit Court. Only if the conviction is affirmed in the Circuit Court would the question get to the Court of Appeal. If the question has never come to the Court of Appeal. the obvious and likely explanation is that the necessary sequence of basic errors has never been made.

Turn the question around. Can you point to anybody who has been convicted of possession when the only evidence against them was that they were under the influence? If you cannot, why do you think that might be?

Victor

Peregrinus wrote: »

So, to continue the example I used earlier, I bake hash brownies and serve them to my friends. My friends commit no offence, but I do.

Ah! Only in the event that they ate them not knowing them to contain drugs. Even if they had them in their possession, NOT knowing them to contain drugs, there is a possession issue. Short of you spoon feeding them into their mouths.

Peregrinus

Victor wrote: »

Ah! Only in the event that they ate them not knowing them to contain drugs. Even if they had them in their possession, NOT knowing them to contain drugs, there is a possession issue. Short of you spoon feeding them into their mouths.

True. There's the brief period between the time my friend picks up the brownie and the time he eats it; you could mount a possession charge if you had evidence of that period. But in practice I think the authorities are unlikely to have direct evidence of that period (unless my friend confesses) and, even if they do, they are unlikely to lay a charge.

Sasqwhat

Thanks guys

cobhguy28

Sasqwhat wrote: »

oh because one party sued another?

Yes, one party sued the other party to get them to do something. The Judge said no, there is no law to allow this.

No one is suing in a criminal case.

ohnonotgmail

Peregrinus wrote: »

True. There's the brief period between the time my friend picks up the brownie and the time he eats it; you could mount a possession charge if you had evidence of that period. But in practice I think the authorities are unlikely to have direct evidence of that period (unless my friend confesses) and, even if they do, they are unlikely to lay a charge.

Even if a garda were to observe a person eating said brownie there would be no evidence of possession of drugs as the evidence would have been eaten. there would be no sample to send for testing.

Sasqwhat

If there's no precedent, how can I reinforce the claim that consumption is not a crime, other than pointing at the statute? Should I get a legal opinion from a solicitor on letterheaded paper? Are there articles in law journals I could point to to support the claim?

ohnonotgmail

Sasqwhat wrote: »

If there's no precedent, how can I reinforce the claim that consumption is not a crime, other than pointing at the statute? Should I get a legal opinion from a solicitor on letterheaded paper? Are there articles in law journals I could point to to support the claim?

Who are you making this claim to?

Sasqwhat

ohnonotgmail wrote: »

Who are you making this claim to?

The Man

ohnonotgmail

Sasqwhat wrote: »

The Man

no time for this nonsense. best of luck in court.

shtpEdthePlum

What if you quickly swallow the bag when the shades approach only to gawk it up on them, I'm pretty sure that's unlawful distribution then.

28064212

Sasqwhat wrote: »

how can I reinforce the claim that consumption is not a crime, other than pointing at the statute?

You can't, because the question makes no sense. You're trying to prove a negative.

Prove to me that (for example) wearing mismatched socks is not a crime. The only way to do that is examine every piece of legislation (and in a common law system such as ours, precedents) ever passed, which is simply not feasible. I could never provide an example of a "mismatched socks" case being dismissed in court, because such a case would never get near a courtroom.

The burden of proof is on the person claiming that a law is being broken. If they cannot support their case, it can be summarily dismissed.

Sasqwhat

hasn't it at least been discussed in the literature?

28064212

Sasqwhat wrote: »

hasn't it at least been discussed in the literature?

Has the potential criminality of mismatched socks been discussed in legal literature? Maybe it has, I doubt it made any significant impression in the community though.

ohnonotgmail

28064212 wrote: »

Has the potential criminality of mismatched socks been discussed in legal literature? Maybe it has, I doubt it made any significant impression in the community though.

The Harvard Law review did an in-depth article on it. I'll see if i can dig it up.

Guy:Incognito

Sasqwhat wrote: »

If there's no precedent, how can I reinforce the claim that consumption is not a crime, other than pointing at the statute? Should I get a legal opinion from a solicitor on letterheaded paper? Are there articles in law journals I could point to to support the claim?

How would you go about proving that reading your copy of Paul McGrath's book isnt illegal?

Sasqwhat

Guy:Incognito wrote: »

How would you go about proving that reading your copy of Paul McGrath's book isnt illegal?

A few approaches come to mind:

1. Get a solicitor to write a letter stating her official legal opinion
2. Get a Gard to refuse to arrest me/Garda clearance letter
3. Actually get to trial somehow and be acquitted/exonerated

28064212

Sasqwhat wrote: »

A few approaches come to mind:

1. Get a solicitor to write a letter stating her official legal opinion
2. Get a Gard to refuse to arrest me/Garda clearance letter
3. Actually get to trial somehow and be acquitted/exonerated

1. Conceivable. Put up enough money and you can get a solicitor to write almost anything. You certainly won't get some open-ended, non-specific statement like "you can't be arrested for consuming drugs" and it will come with about 7000 caveats
2. That makes no sense
3. "somehow"... that also makes no sense

Sasqwhat

How would you then? If you had to substantiate/reinforce a claim to an authority that reading Paul McGrath's book wasn't an offense?

domrush

Sasqwhat wrote: »

How would you then? If you had to substantiate/reinforce a claim to an authority that reading Paul McGrath's book wasn't an offense?

But the authorities aren’t saying it’s an offence.

No one is charged for the consumption of drugs