“We have yet to file charges related to the sale of these substances,” Kuester said. “However, as investigations are completed and issues of proof resolved, I believe that charges will be filed in the relatively near future.”
Kuester said state prosecutors rely on OSBI chemists and lab technicians to provide expert testimony in court. Without it, it can hard to convince a judge to move forward with any given case.
“For decades ... with things like meth, cocaine or other so-called street drugs, we send the substances off to the OSBI and they confirm it,” the prosecutor said. “But they haven't been able to do that on these synthetic ... poisons.
“We've got to wait for (OSBI) to catch up to the people who are making these substances. They are constantly changing the chemical makeup of the substances, so it is the newness that we are still dealing with.”
What's being done
While Kuester is playing a wise game of wait-and-see, Cleveland County District Attorney Greg Mashburn said his office is working with OSBI and the University of Oklahoma to figure out a way to avoid future dismissals.
“We're talking with an organic chemist from OU, trying to figure out a way that we can possibly use them in court to make sure these cases get past preliminary hearing,” Mashburn said.
“The OSBI, from what I've been told, is working on things from their end.”
Mistie Burris, who supervises OSBI's forensic chemistry lab in Edmond, said the state law enforcement agency is indeed “working on things from their end,” but acknowledged during an interview Friday that many challenges lie ahead.
Other than the two cases in Cleveland County, which resulted in dismissals because OSBI could not confirm the presence of XLR-11, Burris said evidence from other jurisdictions has met a similar fate.
“I know there have been other cases, but I can't recall them off the top of my head,” Burris said.
Burris said OSBI chemists were nearly positive that many of the substances they were testing did contain XLR-11 — including the samples from Cleveland County — but a recent change in lab policy required they obtain a sample of the substance from a “reputable manufacturer” before they can confirm it in court.
“Our policy requires that we obtain a standard ... and we didn't have that for a long time when we were testing these substances,” she said, adding that OSBI has since gotten its hands on such a sample.
“So, it was kind of a policy issue, to make sure the quality of our laboratory remained high. We definitely didn't want to call anything wrong.”
In addition to being able to positively identify chemical compounds like XLR-11, Burris said prosecutors are now asking OSBI chemists to provide information about the effects of synthetic marijuana on the human body.
“These drugs are so new, and the manufacturers are always changing the drugs themselves, that we just don't have information on what they do to the body,” she said. “It's something new they're expecting out of us and we need published stuff in medical journals, we need more information.
“People are studying this now, but again, the drugs keep changing because they (manufacturers) keep up with legislation to see what's going to be added to the banned list.”
Burris said this trend is evident in the samples of synthetic marijuana her lab has been receiving lately.
“For a while, they were all XLR-11,” she said. “Now, they're putting something else in.”
While it has only been widely available in the U.S. since 2010, synthetic marijuana already has been linked to numerous overdoses and deaths nationwide.
In November, a 15-year-old boy in Mustang was hospitalized after telling his mother he'd smoked synthetic marijuana. The boy was on and off dialysis for several days.
At the time, the Mustang High School student was one of two patients at the Oklahoma City hospital being treated for kidney failure after admitting to smoking synthetic pot.
According to the Centers for Disease Control and Prevention, the two Oklahoma patients had smoked a product by the name of “Flame 2.0.”
CDC documents show the two patients in the Oklahoma City area complained of vomiting, nausea and abdominal pain.
Last April, school officials in Tahlequah announced that two students were taken to a hospital after smoking synthetic marijuana.
About the time of the Mustang teen's hospitalization, Dr. David Myers, an OU Children's Physicians pediatric nephrologist, said not much is known about which chemicals in synthetic pot are causing people to experience adverse reactions such as kidney failure.
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What is synthetic marijuana?
Sold under many names, it is dried herbs sprayed with lab-synthesized chemicals that are supposed to mimic the effects of THC, the active ingredient in cannabis.