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1. Definition and Required Elements
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.
In order to secure a conviction for the sale of a substitute substance, a prosecutor must prove each of the following elements:
(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
(2) Thereafter sold, administered, gave, transported or delivered a substance in place of the controlled substance referenced in the first element.
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.
2. Related Offenses
Sale of a substitute substance is an offense that is similar or related to the following California offenses:
California HSC Section 11350:Possession of a Controlled Substance
California HSC Sections 11377-11379: Possession, Sales and Transportation of Methamphetamines
California HSC Section 11352: Sales and Transportation of Controlled Substances
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, sold the young man 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.
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 further comment. Under these changed facts, the defendant would not be guilty under the statute for the sale of a substitute substance, as he never entered into a clear agreement with the young man to sell a controlled substance.
4. Potential Defenses
This crime is most often charged following an undercover sting operation involving undercover officers requesting to buy controlled substances from a defendant. If the officer in question was overly aggressive or applied extreme pressure to the defendant, the actions of the office may constitute a valid defense of entrapment.
Under California law, sale of a substitute substance can be charged as either a misdemeanor or a felony. Prosecutors typically consider the criminal background of the defendant and the circumstances surrounding the alleged crime when determining whether to seek a felony or misdemeanor conviction. In the case of a misdemeanor conviction, a defendant may be sentenced to up to one year in jail, while a conviction of a felony charge can mean a sentence of up to three years in prison.
6. Criminal Defense
If you or your loved one are under investigation for or have been charged with sale of a substitute substance, you should immediately seek the advice and assistance of an experienced criminal defense attorney. An attorney will assist you with the process associated with criminal investigations, charges, and prosecution, and will help you to not only protect your rights, but to investigate, protect, and present your best defenses to the charge.