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People v. Mccarty

OPINION FILED SEPTEMBER 30, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

DANNY JOE MCCARTY, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Jeanne E. Scott, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

The defendant, Danny Joe McCarty, was indicted by the grand jury of Sangamon County for the unlawful delivery of less than 30 grams of a substance containing cocaine in violation of section 401(b) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(b)). Prior to trial he filed a motion to dismiss the indictment alleging that the classification of cocaine as a Schedule II "narcotic drug" under section 401(b) of the Act was unconstitutional. The motion was denied. A jury found the defendant guilty as charged, and the trial court sentenced him to 3 years' imprisonment. On appeal, the appellate court found that because cocaine is neither pharmacologically nor scientifically a narcotic, its classification as such under the Act denied defendant his constitutional right to equal protection under the law. As a result the court reduced the conviction from a Class 2 felony to a Class 3 felony and remanded the cause to the trial court for resentencing. (93 Ill. App.3d 898.) The State appeals under Supreme Court Rule 317 (73 Ill.2d R. 317).

The State contends that there is a rational basis for the present classification of cocaine as a "narcotic drug." The defendant does not generally challenge the inclusion of cocaine in Schedule II of the Act, but, rather, claims that its designation as a narcotic therein is capricious, arbitrary and without a rational basis, thereby denying him of his right to equal protection.

The legislative purpose of the Act is set out in section 100:

"It is the intent of the General Assembly, recognizing the rising incidence in the abuse of drugs and other dangerous substances and its resultant damage to the peace, health, and welfare of the citizens of Illinois, to provide a system of control over the distribution and use of controlled substances which will more effectively: * * * (3) penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; (4) acknowledge the functional and consequential differences between the various types of controlled substances and provide for correspondingly different degrees of control over each of the various types; (5) unify where feasible and codify the efforts of this state to conform with the regulatory systems of the Federal government and other states to establish national coordination of efforts to control the abuse of controlled substances * * *." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1100.)

The Act divides controlled substances into five schedules based on a descending order of potential for abuse. Substances within Schedule I have the highest potential for abuse and, therefore, call for the most severe penalties, whereas Schedule V substances have the lowest potential for abuse and correspondingly call for less severe penalties. Only Schedule II is involved in this appeal. Section 401 specifies the penalties for the manufacture or delivery of a controlled substance:

"Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this Section with respect to:

(b) any other amount of a controlled substance [other than those amounts specified in section 401(a), i.e., less than 30 grams of any substance containing cocaine] classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony. The fine for violation of this subsection (b) shall not be more than $25,000;

(c) any other amount of a controlled substance classified in Schedule I or II which is not a narcotic drug is guilty of a Class 3 felony. The fine for violation of this subsection (c) shall not be more than $20,000." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1401(b), (c).)

The term "narcotic drug" is specifically defined in section 102 of the Act to include opium and opiate derivates as well as "coca leaves and any salts, compound, derivative, or preparation of coca leaves * * * but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine." Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1102(aa)(4).

At the pretrial hearing on defendant's motion to dismiss, the State presented no witness in opposition to the motion. Defendant presented the testimony of two expert witnesses, Dr. Joel Fort, a physician with expertise in the field of drug use and abuse, and Dr. Ronald Siegal, a psychopharmacologist and a psychologist. Both experts testified as follows. The "consensus of medical opinion" is that cocaine is not a narcotic. The characteristics of narcotic drugs are that they (1) botanically, are related to the opium poppy; (2) pharmacologically, are psychoactive depressants; (3) physiologically, are addicting, that is, they produce tolerance and withdrawal. Tolerance means that with continued use the body will require a larger amount of the drug to produce the same effect. When the drug is withdrawn from the user a "withdrawal syndrome" will occur with a variety of unpleasant symptoms.

Cocaine is not related to the opium poppy but is a substance derived from coca leaves. Unlike the narcotics which are depressants, cocaine is a central nervous system stimulant. Its short-term physiological effects include increase in heart rate and blood pressure and eye pupil dilation. To the user it produces a euphoric state and reduces fatigue and hunger. It is not physically addictive in that it does not produce tolerance or withdrawal. Both experts were of the opinion that it does not cause hallucinations or psychosis but may cause a perceptual disorder in which a user experiences the sensation of insects crawling in or on the skin. Both experts agreed that cocaine can be psychologically addictive but felt that such dependency is seen in only 1% of users labeled "compulsive."

Cocaine is taken into the body by most users nasally by "snorting" or "sniffing." A small percentage of users (1%) inject cocaine intravenously. Both experts were of the opinion that cocaine is not generally harmful in that it is quickly and cleanly eliminated from the body. Nasal ingestion may, however, cause chronic nasal irritation, which can result in the perforation of the nasal septum. Other common side effects are irritability, insomnia and weight loss. Death can occur from a large overdose but is rare in recreational use. Cocaine has a recognized medical use as a local anesthetic.

Although both experts were of the opinion that cocaine has no causal connection to criminal behavior, both conceded that criminal activity, including violent crime, is associated with the illegal trafficking of cocaine. Dr. Fort testified that there is some divergence of opinion among experts, especially between human researchers and animal researchers, as to the dangerousness of cocaine to users. Although both experts were of the opinion that ...


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