Ketamine in Criminal Law: What You Need to Know About the Legal Classification
Drug or Illegal Substance? The Complex Legal Situation in Ketamine Cases
Ketamine is increasingly causing uncertainty in criminal justice. The substance exists in a legal gray area between the Medicinal Products Act and the New Psychoactive Substances Act. For defendants, this ambiguity can have decisive effects on sentencing.
The Fundamental Problem: Which Law Applies?
Although the legislature included the substance group of arylcyclohexylamine-derived compounds, which also includes ketamine, in the scope of the New Psychoactive Substances Act (NpSG), the priority application of the Medicinal Products Act regulated in § 1 Abs. 2 Nr. 2 NpSG could preclude punishment under § 4 NpSG for trafficking in ketamine.
The substance referred to as “ketamine” by the criminal chamber in case II.2.b of the judgment grounds is – subject to any substance-specific peculiarities not evident from the judgment grounds – a medicinal product pursuant to § 2 Abs. 1 Satz 2 Nr. 2a AMG.
Ketamine as a Medicinal Product: The Medical Perspective
Ketamine is used in anesthesia and pain treatment, the similarly acting esketamine in the treatment of depression; both are prescription drugs.
Ketamine could be a functional medicinal product in composition and mode of action, namely a substance or preparation that can be applied to or administered to the human body to restore, correct or influence physiological functions through a pharmacological, immunological or metabolic effect (§ 2 Abs. 1 Satz 2 Nr. 2a AMG).
No Authorization Required for Medicinal Product Status
A common misconception: The absence of official authorization or registration does not preclude medicinal product status within the meaning of § 2 Abs. 2 AMG. What is decisive is solely whether the statutory requirements of § 2 Abs. 1, Abs. 2 or Abs. 3a AMG are met; retail-typical packaging or labeling, a package insert or a special form of distribution are not required.
Distinction from Synthetic Cannabinoids
Unlike synthetic cannabinoids, ketamine is not exclusively a substance that influences the physiological functions of a person without being beneficial to health. The decision of the ECJ on synthetic cannabinoids therefore does not preclude the legal classification of ketamine as a functional medicinal product within the meaning of § 2 Abs. 1 Satz 2 Nr. 2a AMG.
Ketamine is Already an End Product
It already exhibits all the properties of a medicinal product and apparently requires no further essential processing or preparation step. The possible addition of salts and water for injection purposes enables the injectability of the agent but does not change its effect.
New Ketamine Derivatives and Their Classification
The fact that so-called 2-fluorodeschloroketamine has recently fallen under the scope of the BtMG merely illustrates that (other) substances may also be traded on the illegal market under the designation “ketamine” which, if not subject to the BtMG, could fall under the NpSG due to lack of medicinal product status.
Practical Consequences for Criminal Proceedings
The court’s findings do not address the material form of the ketamine, so the Senate cannot determine whether the ketamine falls under the Medicinal Products Act (AMG) or the New Psychoactive Substances Act (NpSG).
Fundamentally, ketamine can fall under the New Psychoactive Substances Act or the Medicinal Products Act. The substance group of arylcyclohexylamines listed in the annex to the NpSG under number 6 also includes ketamine. Additionally, ketamine is listed in Annex 1 of the Regulation on the Prescription Requirement for Medicinal Products (AMVV).
Confiscation in Case of Procedural Limitation
Dangerous objects discovered during investigations but having no connection to the offense in question are not subject to security confiscation. There is no such connection between the adjudicated narcotics offenses and the ketamine; regarding this substance, the Regional Court limited the proceedings pursuant to § 154a Abs. 2 StPO and thereby excluded prosecution of an offense under the Medicinal Products Act.
Sentencing Framework: Significant Differences Depending on Classification
The legal classification has massive effects on sentencing. While violations of the Medicinal Products Act are generally punished more leniently, significantly harsher penalties threaten under application of the NpSG. The acts can be assessed as commercial importation of a new psychoactive substance in conjunction with aiding and abetting commercial trafficking in a new psychoactive substance pursuant to § 4 Abs. 1 Nr. 1 Variant 1, Nr. 2 Buchst. b, Abs. 3 Nr. 1 Buchst. a Alternative 1 NpSG.
No Threshold Values for “Not Insignificant Quantity”
It is doubtful whether a threshold value for a “not insignificant quantity” is required for ketamine; the statutory wording of § 4 NpSG does not mention such a characteristic – unlike § 29a Abs. 1 Nr. 2 BtMG or § 34 Abs. 3 Satz 2 Nr. 4 KCanG. However, such an approach is at least within the scope of a permissible judicial determination of the appropriate sentence.
Requirement for Expert Assessment
Whether the confiscated, unspecified “ketamine” is a medicinal product or a new psychoactive substance cannot be assessed without further findings. This requires further findings by the trial court, possibly based on a supplementary examination of the confiscated substance by an expert.
Ketamine in Practice: Use and Abuse
Ketamine (hydrochloride) is a white crystalline, water-soluble powder with analgesic and narcotic properties. Ketamine uptake can occur orally or by snorting or can be injected intramuscularly.
While the effect of intramuscular application sets in after a few minutes and lasts 30-60 minutes, the onset of effect with oral intake occurs between five and 30 minutes, with a duration of effect of 1-2 hours. Depending on the dose, the effect is only comparable to a “slight buzz” but can also lead to complete incapacity to act and lack of will.
Ketamine as a Date-Rape Drug
Date-rape drugs are typically sleeping or anesthetic agents that are mixed unnoticed into food or drinks. The substances produce sedation or lack of will. The victims then usually become victims of property or sexual offenses.
Conclusion
The legal classification of ketamine remains complex and case-dependent. The distinction between the Medicinal Products Act and the New Psychoactive Substances Act is not definitively clarified and is handled differently by the courts. For defendants, this uncertainty can present both risks and opportunities.
What is decisive is the exact material composition of the confiscated material. Blanket statements are not possible. Each case requires individual examination with the assistance of expert expertise.
Personal Consultation in Our Law Firm
If you are confronted with a ketamine accusation, you should seek legal assistance early. The legal classification can determine the sentence. Our law firm has extensive experience in narcotics criminal cases and would be happy to advise you on your options. Schedule an appointment for a detailed consultation.
