Manufacture of Imitation Controlled Substances - Health & Safety Code 109575 HS
California Health and Safety Code 109575 HS makes it a crime to knowingly manufacture, distribute, or possess an imitation controlled substance intending to distribute it.
In other words, under California law, it is a crime to manufacture or distribute substances designed to pass for controlled substances, otherwise known as "imitation controlled substances," which are a counterfeit drug intended to be visually mistaken for actual drugs.
This law is codified in Health and Safety Code 109575 HS, and a conviction can result in up to six months in jail.
The law defines an imitation controlled substance as a product specifically manufactured to resemble the physical appearance of a controlled substance and one that a reasonable person cannot distinguish from a real controlled substance by outward appearance.
It can also be a product that is made to look like a real controlled substance and one that a reasonable person would believe that, if taken, would have a stimulant or depressant effect like a real drug.
HS 109575 says, "Any person who knowingly manufactures, distributes, or possesses with intent to distribute, an imitation controlled substance is guilty of a misdemeanor and shall, if convicted, be subject to imprisonment for not more than six months in the county jail or a fine of not more than one thousand dollars ($1,000), or both the imprisonment and fine."
What Is an Imitation Controlled Substance?
Under California law, an imitation controlled substance is any product designed to mimic the appearance of a genuine controlled substance. Still, it does not contain the actual active ingredients of those drugs.
These substances are crafted to deceive individuals into believing they are purchasing or consuming legitimate illegal drugs such as cocaine, heroin, or methamphetamine. Specifically, the substance in question falls under the definition of an imitation controlled substance if:
- It is specifically made to resemble the physical appearance of a controlled substance and
- A reasonable person would not be able to differentiate between the imitation and the real substance to the point the person would assume consuming the imitation substance would have the same effect as the real drug.
What Does the Law Say?
Under HSC 109575, it is illegal to participate in any part of the supply chain concerning an imitation controlled substance. This includes manufacturing, distributing, or possessing it with the intent to distribute it. For purposes of this law, possession can refer to one of three things:
- Actual possession, meaning the substance is on your person, or you have physical control of it
- Constructive possession, meaning the substance is not directly on your person, but you have constructive control and access (e.g., stored in your house, in a trunk, or in a locker to which you have the key
- Joint possession, meaning you have joint access to the substance with at least one other person.
What Must Be Proven for a Conviction?
To secure a conviction under HSC 109575, the prosecution must prove several elements of the crime beyond a reasonable doubt:
- You created, distributed, or possessed, intending to distribute, an imitation controlled substance.
- You did so knowing that the substance was an imitation.
- The substance was designed to look like a real controlled substance, whether in physical appearance, packaging, or markings.
- You intended for others to believe the imitation substance was a real controlled drug.
What are Related Crimes?
Several California laws are related to the illegal manufacture or distribution of an imitation controlled substance, such as the following:
- Health and Safety Code 11355 HS - Sale of an imitation controlled substance. This law makes it a crime for someone to substitute an imitation controlled substance after offering to sell a real drug. This wobbler can be charged as a misdemeanor or felony and carries a maximum of three years in jail. This crime involves not just distributing fake drugs but selling fake drugs to someone after specifically offering to sell them the real thing.
- Health and Safety Code 11375.5 HS - Sale of a synthetic stimulant. This misdemeanor law makes it a crime for a person to either sell or give synthetic stimulants to someone or use or possess synthetic stimulants. Synthetic stimulants are known as "designer drugs," and they are designed to produce effects similar to cocaine, ecstasy, or methamphetamine. Simply put, this law prohibits selling, furnishing, administering, or giving away synthetic stimulants.
- Health and Safety Code 11350 HS - Possession of a controlled substance. This misdemeanor law prohibits possessing a controlled substance without a valid prescription. A "controlled substance" is a drug or chemical whose manufacture, possession, and use are regulated by the government under the United States "Controlled Substances Act." This law covers narcotics and other illegal drugs, such as cocaine and heroin. It also applies to prescription drugs such as hydrocodone, oxycodone, and codeine.
- Health and Safety Code 11351 HS - Possession for sale of controlled substances. This law addresses possessing illegal drugs with the intent to sell or distribute them, typically a misdemeanor.
- California Health and Safety Code 11375.5 HSC. This is the statute that makes it a crime for a person either to sell or give synthetic stimulants to someone or to use or possess them.
What are the Penalties?
Violating HSC 10975 is a misdemeanor offense. If convicted, you could face the following:
- Up to $1000 in fines and
- Up to six months in county jail.
Notably, a judge may also impose summary probation instead of jail time.
What are the Defenses Against These Charges?
Facing charges under HSC 109575 does not mean a conviction is inevitable. An experienced California criminal defense attorney can employ several defenses to fight the charges. These include:
- Misidentification: Arguing that the substance in question is not an imitation controlled substance, nor intended to be. Scientific analysis can sometimes show that the substance does not sufficiently resemble a controlled substance.
- Lack of Intent: Demonstrating that there was no intention to distribute the imitation substance or pass it off as genuine.
- Entrapment: Entrapment can be a valid defense if law enforcement officers coerced or induced the defendant to commit a crime they would otherwise not have committed.
- Unlawful Search and Seizure: If law enforcement obtained the substance through an illegal search and seizure, any evidence collected may be deemed inadmissible in court. This can result in a dismissal of charges.
For more information, contact our criminal defense law firm, Eisner Gorin LLP, which has offices in Los Angeles, California.
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