Drug’s Effects, Purity Not Critical in Conviction : Law: State Supreme Court rules that the two factors are not essential to determine illegal possession.

SAN FRANCISCO — The California Supreme Court ruled Monday that the narcotic effect of a drug need not be proven to establish illegal possession of the drug.

In a unanimous decision, the court reversed a lower court ruling that overturned a drug possession conviction because the defendant had not been given the right to cross-examine prosecution witnesses on the purity of the cocaine in his possession.

Los Angeles police arrested Pascual H. Rubacalba in July, 1990, near Downtown Los Angeles for possession of one-tenth of a gram of a substance containing cocaine--an amount that is about one-quarter the size of an aspirin.

During the trial, the judge refused to allow the defense to question the prosecution’s expert witness on the purity of the cocaine or the amount needed to produce intoxication. The defense argued the questions were relevant because the quantity must be usable to be illegal.

A Court of Appeal in Los Angeles agreed that such questions should have been permitted, and reversed Rubacalba’s three-year prison sentence.

But the state Supreme Court, in an opinion by Justice Armand Arabian, said the narcotic’s effect or purity need not be proven to establish that there was a usable quantity.

A drug would not be considered a usable quantity, for example, if it were a mere blackened residue or a minute trace found on a dollar bill. But in Rubacalba’s case, a police officer testified that the cocaine substance was usable because it could be “placed in a pipe or similar smoking device and smoked.”

Deputy Atty. Gen. Frederick Grab praised the Supreme Court ruling, contending that the intoxicating potential of an amount of a drug should not be deemed relevant because that potential would vary from individual to individual.

“What are we going to do? Chain him down and make him smoke it and see whether he got high?” Grab said. “Seriously, what are you going to do?”

The court said, however, that the purity of a drug could be important in some cases. It cited the example of a suspect apprehended with talcum powder that contains only a microscopic amount of cocaine. The purity of the drug in that situation might be relevant in showing whether the defendant was aware of the presence of the contraband, the court said.

Grab said juries determine whether a drug amount is usable according to the facts in the case.

“I am told there is a certain amount of cocaine on every dollar bill in the United States,” he said. “Does that mean you should be prosecuted for possession of cocaine? No. You are not going to smoke a dollar bill.”

Geoffrey R. Pope, the Ontario attorney for Rubacalba, said he was disappointed but not surprised by the court’s decision. He said he does not believe a drug should be defined as legally usable if it is too little to produce intoxication.

“If I have a speck and I mix it with something to make it a larger mass, I could put it into a pipe and smoke it,” Pope said. “The question is, am I going to get high. That is why it is illegal, because it does things to your head.”