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What’s an “analogue”?

October 4, 2012

2. Law, 5. Pre-Trial, 6. Trial

If you read the statutes on synthetic cannabinoids, you’ll constantly run into the phrase “and it’s analogues” (sometimes spelled “analog”).  A lot rides on the definition of that word.  Is, for example, UR-144 an “analogue” of JWH-018?  If it is, your prospects are dim at trial.  If it’s not, we’re high-fiving afterwards at the bar as the prosecutors and cops shuffle dejectedly from the front door to their private room behind us.

Let me cut to the chase:  It doesn’t matter what additional phrases a statute sticks in trying to define “analogue.”  None of them have generally agreed upon definitions within the scientific community.  A Ph.D. Organic Chemist friend of mine, whose entire professional career rests upon knowing such things, wrote it this way:

The absence of a universally accepted definition of analogue within the chemistry community weakens any use of the term when applied in laws, which require a higher standard of specificity. The structure similarity parameter used by the analogue and structural analogue definitions can be interpreted to mean many things. Points of references can include two-dimensional structure, three dimensional structure, and polar surfaces of the structure. The analogue definitions all compare two structures with the condition of similarity, but lack the magnitude of similarity, therefore, fail to define how similar the two structures compared must be to be considered analogues. Similarity descriptions range from “structures being related” all the way to the structures differing slightly by replacing an atom by another atom or functional group. Some definitions also contain the condition of biological activity, but vary from the effects needing to be similar to the effects need not be similar.

I like that.  My friend illustrated the problem for me by taking two definitions recognized by chemists, then applying them to the UR-144/JWH-018 question.  Definition 1: Yes, analogues – Definition 2:  No, not analogues.  What’s a jury to do?  No worries.  Won’t get that far.  We’ll bounce it in Omnibus.

And therein lies the challenge for prosecutors.  Just this single question is insurmountable.  We’ll cover more as our discussions unfold.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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