Not long ago, a man was driving near Gorman when he was stopped by law enforcement officers. During the stop, the officers performed a search of the vehicle and discovered 2,600 packets of a suspicious white powder – which they assumed was cocaine – and arrested the man on suspicion of transporting narcotics. Fortunately for the suspect, subsequent testing revealed that the substance in the packets was not cocaine, nor any other controlled substance. The suspect, who had been released on bond after his arrest, was not charged with any crime.
Whatever the white powder was, the fact that it wasn’t a controlled substance resulted in no charges being filed – but that doesn’t hold true in every case; much depends on what the person in the situation intends to do with the substance. For example, if a person is in possession of a substance that isn’t controlled, but they intend to pass it off as the real thing, they could be charged with a crime.
California Health and Safety Code 109575 HS makes it illegal to knowingly transport, manufacture, distribute or possess an imitation controlled substance. California Health and Safety Code 11355 makes it illegal to arrange to sell and/or transport a controlled substance and deliver a fake product instead. The laws are designed to punish an individual’s intent to traffic in illegal drugs as well as any possible harm that may come to a victim after ingesting them.
In order for something to qualify as an imitation controlled substance, it has to meet one of two possible sets of criteria. The first is that it must be a substance that was specifically manufactured or designed to resemble the physical appearance of a controlled substance which a reasonable person of ordinary knowledge would not be able to distinguish from a controlled substance by its outward appearance. For example, grinding up chalk and attempting to pass it off as cocaine would probably result in a violation of 109575 HS, whereas attempting to pass off a baggy of chopped broccoli as marijuana would probably not.
The second set of criteria stipulates that the substance is not controlled, but by its appearance and your representation it would lead a reasonable person to believe that it had stimulating or depressing effects and that they would get high by ingesting it just like they would by ingesting the controlled substance. Basically, this second definition covers substances that aren’t specifically manufactured or designed by the seller to resemble a controlled substance, but that they still try to pass off as the real thing, and look close enough to the actual product that a reasonable person would assume that taking it would lead to the same effects.
Violations of Health and Safety Code 109575 are misdemeanors with the possible penalties of up to six months in county jail and/or a fine of up to $1,000. Violations of Health and Safety Code 11355 HS are “wobblers” that can be charged as either a misdemeanor or a felony depending on the circumstances of the case and the defendant’s prior criminal history. Penalties for misdemeanor charges include up to one year in county jail, while felony penalties include 16 months to three years in county jail.