On October 28, 2019, a three-judge appellate panel decided the Bergen County case of State v. Joe Nicolas. The principal issue was whether the drug Alpha-PVP, also known as “flakka”, could be classified as illegal in New Jersey based on its federal classification at the time of the defendant’s arrest.
Judge Whipple authored the opinion and held in relevant part as follows: Adhering to this standard of review, we reject defendant’s argument that alpha-PVP was not considered a Schedule I CDS at the time of his arrest. The New Jersey Controlled Dangerous Substances Act (CDSA) both affords and restricts the authority of the Director of Consumer Affairs in the Department of Law and Public Safety (Director) to schedule and control certain hazardous substances. On one hand, N.J.S.A. 24:21-3(a) permits the Director to control a substance after considering eight factors concerning the substance’s potential for abuse, the scientific evidence and knowledge of the substance’s effects, and the risk to public health. However, “if any substance is designated, rescheduled or deleted as a controlled dangerous substance under federal law and notice thereof is given to the Director, the Director shall similarly control the substance . . . after the expiration of thirty days from the publication in the Federal Register.” N.J.S.A. 24:21-3(c). Should the Director “object” to the federal government’s “inclusion, rescheduling, or deletion, . . . the director shall cause to be published in the New Jersey Register and made public the reasons for his objection and shall afford all interested parties an opportunity to be heard.” Ibid.
In 2014, the Deputy Administrator of the Drug Enforcement Agency (DEA) temporarily placed alpha-PVP in Schedule I. Schedules of Controlled Substances: Temporary Placement of 10 Synthetic Cathinones into Schedule I, 79 Fed. Reg. 12,938 (Mar. 7, 2014) (to be codified at 21 C.F.R. pt. 1308). A substance’s temporary designation lasts two years, and the DEA may, as it did in alpha-PVP’s case, extend the temporary scheduling for up to one more year. 21 U.S.C. § 811(h)(2); Schedules of Controlled Substances: Extension of Temporary Placement of 10 Synthetic Cathinones in Schedule I of the Controlled Substances Act, 81 Fed. Reg. 11,429 (Mar. 4, 2016) (to be codified at 21 C.F.R. pt. 1308). The Director declined to object to the DEA’s designation of alpha-PVP in Schedule I. Thus, at the time of defendant’s 2015 arrest, alpha-PVP was a Schedule I drug under both federal and New Jersey law.
The DEA likely schedules new substances on a daily basis. The black market for drugs is very profitable and competitive. It stands to reason that there are teams of scientists working every day to modify banned substances in a way that changes there structure enough to avoid classification, while maintaining their mind-altering qualities.