Sale of a Substitute Substance under California HSC Section 11355
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1. Definition and Required Elements
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Under certain sets of facts, a defendant may be convicted of a drug crime even when there was no controlled substance involved in the crime in question. Under California law, it is the sale of a substitute substance (also known as a fake drug) is unlawful. Therefore, even when the drug is fake, a defendant charged with sale of a substitute substance under California HSC Section 11355 may be convicted of a crime.
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In order to secure a conviction for the sale of a substitute substance, a prosecutor must prove each of the following elements:
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(1) The defendant in question administered, agreed, consented, gave, offered, furnished, arranged, or negotiated for the sale, transportation, administration, furnishing, or delivery of a a controlled substance; and
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(2) Thereafter sold, administered, gave, transported or delivered a substance in place of the controlled substance referenced in the first element.
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Under California law, selling includes the exchange of money, goods, services, or anything of value for the substance. Transportation includes carrying or moving the substance from one location to another location, even when the actual distance is very short. Administered means the defendant applied the substance to the body of another individual either by injection or any other means, but also includes any activity that causes the other individual to ingest, inhale, or otherwise consume the substance in question.
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2. Related Offenses
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Sale of a substitute substance is an offense that is similar or related to the following California offenses:
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California HSC Section 11350:possession of a controlled substance
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California HSC Sections 11377-11379: Possession, Sales and Transportation of methamphetamines
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California HSC Section 11352: sales and transportation of controlled substances
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3. Examples
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Example A: A defendant was at a concert and was approached by a young man who indicated he was interested in purchasing the illegal substance ecstasy. The defendant did not have possession of any ecstasy, but instead, possession for sale 5 tablets of aspiring under the guise of selling him ecstasy. The young man paid the defendant $25 in exchange for the aspirin that the young man believed to be ecstasy, and the defendant provided the pills in question to the young man. Despite the fact that the pills in question were merely aspirin, which is legal to possess, the defendant may be prosecuted under California HSC Section 11355 for the sale of a substitute substance.
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Example B: Under the same set of facts presented in Example A, but instead the young man approached the defendant and stated he wanted to purchase “something to make him feel better.” The defendant provides the 5 pills of aspirin in exchange for $20 without any fu\n\n
