Ron I don't think you need worry about growing live cacti. In fact it's dodgier to be in possession of dried because it counts as a preparation, whereas cacti growing in your garden don't. They might charge you for possession of 100g of dried chips, but they wouldn't charge you at all for having one growing in your garden so it simply doesn't matter how much more it weighs. I would say the safest scenario is therefore to have a few in your garden, and prepare from fresh rather than dried, but don't get caught during the half an hour that you're preparing it!Erowid http://www.erowid.org/plants/cacti/cacti_law.shtml said:
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The legal argument against owning live cactus vs. dried cactus
- Thread starter 69ron
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I agree they would do this if they were busting you.
But wouldn't dried powder count as a preparation wherease living cactus won't? I think the consequences are more serious if you got caught with living (and hence more material) then just some powder. However gettign caught with powder might be an immediate offense whereas just having living cacti is not.
MagikVenom
Rising Star
If you store it dry have a little dried materal from each one powdered mixed with 25 inactive catcus. ok test this boys they hate paperwork and real thinking.
SWIMfriend said:
Kannamate said:
Do either of you have a source for that claim? I've never been able to find anything in the CSA that indicates intent has anything to do with whether possession is a crime. And every time I've asked anyone making this claim to back it up in the legal code, they haven't been able to. I think it's a popular urban myth.
Since they contain detectable amounts of mescaline, and are therefor de facto "containers of mescaline", they're explicitly illegal under US law (whether they're alive or dried), and the entire weight of the cactus may be treated as mescaline in terms of criminal charges. Nowhere in the law is there an exception based on growing it as an ornamental succulent.
What it all hinges on is the fact that the law is absurd, and not really enforced. Under the same law, milk is illegal (schedule II, as a container of morphine), yet we don't see grocery stores getting busted for trafficking in illegal drugs, or farmers getting busted for manufacturing.
As far as I can tell, it's basically an unwritten rule right now that police will not pursue criminal charges against people growing live Trichocereus cacti. Since the dried material is pretty explicitly a drug preparation, they may pursue such charges for possession of that. But at this point, it looks like they just have the common decency not to treat the live material as a drug (partly, I assume, because there are people who grow these ornamentally without knowing that they contain mescaline)
Entropymancer- much law is not yet set in stone, so often all you have to go on are the opinions of legally minded people. Consult a lawyer if you want to be safe! Statute gives a very broad intent, which can be ambiguous in certain situations. When statute isn't clear, there are these 'grey areas', in which things like 'legal highs' often operate. Nobody actually KNOWS what the law is in these grey areas until a judge rules on a case that comes up. Once the ruling is made, it becomes law, and 'always was' the law, unless it is overturned by a higher court. This is how UK law works, but the US shares ancestry and apparently works in the same or a similar way.
I expect if the government wanted to crack down on cactus, it would go after the vendors first.
I am sure that evidence of intent would be needed for prosecution at the very least. Otherwise, the government would be making itself liable for prosecution for every mescaline-containing cactus growing on its land. So just grow some other cacti specimins so you look like an enthusiast... make it look like they grew there naturally if you want to be completely fireproof. I'm not a lawyer but I have some knowledge of how the law works and no matter how crazy the government is, I don't believe there's any way they could find you guilty without some evidence of intent.
There's similar logic behind why people don't get prosecuted for DMT-containing phalaris grass growing on their (or the government's) land unbeknownst to them. Or magic mushrooms coming up naturally.
If they ever tried to prosecute you for having such a plant on your land without proof of intent (because they could be that stupid), you could just go and find one on their own land, photograph it, and demand that they be prosecuted themselves too! I would expect that the case would be dropped immediately.
I expect if the government wanted to crack down on cactus, it would go after the vendors first.
I am sure that evidence of intent would be needed for prosecution at the very least. Otherwise, the government would be making itself liable for prosecution for every mescaline-containing cactus growing on its land. So just grow some other cacti specimins so you look like an enthusiast... make it look like they grew there naturally if you want to be completely fireproof. I'm not a lawyer but I have some knowledge of how the law works and no matter how crazy the government is, I don't believe there's any way they could find you guilty without some evidence of intent.
There's similar logic behind why people don't get prosecuted for DMT-containing phalaris grass growing on their (or the government's) land unbeknownst to them. Or magic mushrooms coming up naturally.
If they ever tried to prosecute you for having such a plant on your land without proof of intent (because they could be that stupid), you could just go and find one on their own land, photograph it, and demand that they be prosecuted themselves too! I would expect that the case would be dropped immediately.
I should add though, if you want to openly grow magic cacti, but want to feel safe, make sure the rest of your house is in order. In the unlikely event of a busybody's suspicions being raised, I don't know whether a garden full of cacti would be enough to get the powersthatbe interested in what else you're up to... deliveries, maybe even a search... I don't know how insanely controlling they are where you live! I'd imagine that your computer's log of visiting this site might count as intent.
Personally I'd never risk it if I had other stuff going on because I'm careful bordering on paranoid. But as I am completely law-abiding, growing cacti wouldn't be a problem for me.
Personally I'd never risk it if I had other stuff going on because I'm careful bordering on paranoid. But as I am completely law-abiding, growing cacti wouldn't be a problem for me.
Entropymancer....ummm...my source was simply wikipedia--I looked up the article of San Pedro cactus by its species name. The have a nice article, btw (didn't realize that one molecule from this cactus is an AMAZING antibiotic).
I'm not one for EASILY believing what I read--but what I read there seems to jibe with what I've garnered here and there, and what I know about how US law tends to work.
I'm not one for EASILY believing what I read--but what I read there seems to jibe with what I've garnered here and there, and what I know about how US law tends to work.
Entropymancer said:
Actually, "criminal intent" is a legal requirement for prosecution of ANY AND ALL crimes. If you can show that you have not INTENDED to commit the crime, then you are INNOCENT of the crime. You can prove this to yourself in a million ways:
Somebody buries their stash (or stolen goods, whatever) on YOUR property...you have no intent, so it's not yours, so you can't be prosecuted for "possessing" it, since you didn't INTEND to possess it.
I learned this by experience, from my lawyer: Many years ago (over 30 now!!) I had a business, I was very short on cash, and had to give a supplier a check, and ask him to wait x days before cashing it. The idiot (possibly for purposes of some sort of revenge/mayhem) decided to try to cash it immediately, couldn't of course, and called the police on me. I called my lawyer (who happened to also be the county district attorney) and he informed me unambiguously that if I had no INTENTION of committing a crime that I had NOT committed a crime. I suppose the prosecutor CAN sometimes present a "should-have-known" premise: you buy a brand new car from someone for a very low price, you should KNOW that it might have been stolen.
But the fact is that many people grow these cacti ornamentally. So it's clear that you can't say the random person "should have known." There's also selective prosecution: If everyone is growing the cacti and the police/prosecutor CHOOSE to focus ONLY on you--then they can't do that either (although that issue can get a little dicey).
MagikVenom
Rising Star
I was just thinking about the now defunct supplier of poison non consumeables JLF here is the US they seized his bank account with over 1million dollars, raided the place with a warrent confescated research chems. Then basicaly cut a deal with the owner stop selling these things that they(dea?) specify and we wont charge you and were keeping the research chems.
So the owner complied and quit stocking his best sellers then he went slowly out of bussiness. They stocked everything under the sun toad skins,dream fish, a hundred or so botanicals as well as shroom grow kits, catus and even ergot fungus on grain, lab chems and research chems. The catalog was very interesting
I would not worry about it as long as you arent the one selling large amounts of dried catus. Thats my 2cents
So the owner complied and quit stocking his best sellers then he went slowly out of bussiness. They stocked everything under the sun toad skins,dream fish, a hundred or so botanicals as well as shroom grow kits, catus and even ergot fungus on grain, lab chems and research chems. The catalog was very interesting
I would not worry about it as long as you arent the one selling large amounts of dried catus. Thats my 2cents
I know that here in canada there are at least 3 or 4 stores within 30 minutes from my home from where I can purchace dried peruvian torch and bridgessi chips and live cactus, including peyote(even with signs boldly advertising this fact). Even dried peyote I have seen sold here many times..I know peyote at least is illegal for you guys down south though..
69ron
Rising Star
In the USA, any psilocybin containing mushroom whether live, dried, or powdered, is considered a container of psilocybin. You can be seriously prosecuted for growing them on your property.
We are lucky that the same law interpretations haven't yet been applied to cactus. I do believe it's not that far fetched for a good prosecutor to use the psilocybin mushroom rulings to apply to cactus as well. Why not?
Also, why are people thinking that dried cactus is somehow less safe than dried mimosa? Why is dried powdered cactus viewed this way and not powdered mimosa? None of this makes sense. Meanwhile all mushrooms containing psilocybin, even picked in nature, are considered illegal containers of psilocybin. Where is the sense in that?
The fact in the USA is that no Trichocereus cacti are illegal, but mescaline is. A judge could rule that your entire cactus farm is a crop of mescaline. The judge could site prior rulings for mushrooms as a legal basis for arriving at that conclusion.
I think it's safer to be caught with a small amount of dried cactus than a yard full of live cactus. I don't see that it's much different than growing mushrooms. They both contain illegal hallucinogens. Having a magic mushroom patch and getting caught with it and saying that it's for ornamental purposes doesn't work in court. You'll get your ass prosecuted. I think it's a very fine line between the two.
The only reason they don't go after cactus growers is because it's not as popular as mushrooms. That's all. In the eyes of the law they are still containers of mescaline just like mushroom are containers of psilocybin.
We are lucky that the same law interpretations haven't yet been applied to cactus. I do believe it's not that far fetched for a good prosecutor to use the psilocybin mushroom rulings to apply to cactus as well. Why not?
Also, why are people thinking that dried cactus is somehow less safe than dried mimosa? Why is dried powdered cactus viewed this way and not powdered mimosa? None of this makes sense. Meanwhile all mushrooms containing psilocybin, even picked in nature, are considered illegal containers of psilocybin. Where is the sense in that?
The fact in the USA is that no Trichocereus cacti are illegal, but mescaline is. A judge could rule that your entire cactus farm is a crop of mescaline. The judge could site prior rulings for mushrooms as a legal basis for arriving at that conclusion.
I think it's safer to be caught with a small amount of dried cactus than a yard full of live cactus. I don't see that it's much different than growing mushrooms. They both contain illegal hallucinogens. Having a magic mushroom patch and getting caught with it and saying that it's for ornamental purposes doesn't work in court. You'll get your ass prosecuted. I think it's a very fine line between the two.
The only reason they don't go after cactus growers is because it's not as popular as mushrooms. That's all. In the eyes of the law they are still containers of mescaline just like mushroom are containers of psilocybin.
The simple reason is that people don't grow mushrooms as ornamental plants, but DO grow cacti as ornamentals. It goes back to criminal intent. There's NO PRECEDENT for possessing mushrooms without intent (although if you were PICKING mushrooms, and happened to have a couple of psilocybin shrooms mixed in with a bunch of edible ones, you would probably get off based on intent). There are MANY precendents for possessing mescaline containing cacti but having no intent.
The entire issue is based on the theory of "criminal intent." That's why your cacti are fine UNTIL somebody reports you making tea--at that point, a jury can be convinced that you have the cacti because you INTEND to use them as a source of mescaline. Without having made the tea, a jury could NOT be convinced of your intent--and indeed a judge would never let it GET to a jury (and any sensible prosecutor wouldn't think to PROSECUTE it--without evidence of criminal intent).
The entire issue is based on the theory of "criminal intent." That's why your cacti are fine UNTIL somebody reports you making tea--at that point, a jury can be convinced that you have the cacti because you INTEND to use them as a source of mescaline. Without having made the tea, a jury could NOT be convinced of your intent--and indeed a judge would never let it GET to a jury (and any sensible prosecutor wouldn't think to PROSECUTE it--without evidence of criminal intent).
69ron said:
That's because most states have written SPECIFIC possession laws for shrooms, but not for cacti. If there's a law against possession, then it only has to be shown that you had intent to POSSESS them. I don't think any states have written cacti laws yet (except for peyote).
State laws don't always have to fit perfectly well with federal laws. I think the only federal laws refer to psilocybin itself (and you would probably be charged federally for possession of the fungi--based on precedent that possession of the fungi is INTENT to possess the psilocybin). Most STATES, on the other hand, have written specific fungi laws.
There's nothing to stop any state from writing a San Pedro law (or an MHRB law, for that matter).
Criminal intent is also the reason that people can't be charged with producing DMT in their own bodies. It's illegal to INTEND to possess DMT, it's illegal to INTEND to put DMT into your body--but if it is produced there whether you want it to be or not, you clearly have no criminal intention for it to be there. Thus you're not breaking a law.
69ron
Rising Star
SWIMfriend said:
Yeah, and the reason they did was because it was hard to prosecute people for them based on them being containers of psilocybin, so some states wrote specific laws making certain mushrooms illegal. For example Psilocybe cubensis is specifically illegal in some locations. In California even the spores of Psilocybe cubensis are illegal.
It may be that in order to prosecute someone for cactus possession, similar laws will need to be written that are specific to Trichocereus.
You could always use as your defense that you didn't know the cactus contained mescaline. If you legally bought dried cactus incense and burned it as incense and didn't know it contained mescaline, how could you be charged for ingesting mescaline? How? None of the sites selling dried cactus incense mention anything about it containing mescaline.