H&S 109575 Manufacture of Imitation Controlled Substances Laws in California

I. H&S 109575: Manufacture of Imitation Controlled Substances

Legal Definition: “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.”

In order to be found guilty of violatingH&S 109575, the prosecutor must show that you:

1. Manufactured, distributed, or possessed with the intent to distribute,
2. An imitation controlled substance

II. What does this mean?

Can you get in trouble in California for selling fake drugs? In California yes. One may next wonder what an imitation or fake drug is, as it does seem vague. For this charge to apply, it means that you intended to sell a counterfeit drug to another person. This drug is something that is visibly mistakable for the real thing (such as, a real version of a drug). This charge is broken down further in defining what the substance is either:

1. A product that is manufactured/created to look like and resemble the physical appearance of a controlled substance; and
2. A product that a reasonable person would not be able to tell or distinguish that it takes, instead of real by the appearance.

An imitation controlled substance can also be:

1. A product that is made to look like a real controlled substance, and
2. A product that a reasonable person would believe that, if it is taken, would have the effect of stimulant of the effect of a real drug.

III. Penalties

A violation under HS 109575 is a misdemeanor offense. If convicted under this section as a felony, you could be sentenced to up to 180 days in County Jail. You would have to serve at least 50% of that time in custody. You could also be subject to a fine of up to $1,000.

This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a loss of your Professional License if convicted, and if you are not a legal resident, you could face Deportation in Immigration Court if you have more than one prior criminal conviction.

IV. Common Defenses

1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence
4. False Accusations
5. Coerced Confession

A person who confesses to a crime forced out of them by police conduct would be inadmissible to be used against them in Court. This makes logical sense, if the police force a confession out of a person illegally, it should not be able to be brought into Court to be used against them. Generally, this can happen during police interrogations where police, believing they have their person, do whatever it takes you to make you confess. They can do this through physical abuse or psychological abuse. Police can lie to you. They can claim there are witnesses that saw you at the scene, that another person has blamed you as the one responsible, whatever it takes to get you to confess. These are generally considered normal police conduct, but there are limits to what they can and cannot do. When they go too far, bully you into claiming the fake drugs were created by you to make a quick buck, they end up with a coerced confession. If police coerced you into confessing to committing this crime, your attorney can argue that it should be suppressed, which likely would lead to a dismissal of your case.

If the prosecution is able to show that the drugs are not created or manufactured, then you would not be found guilty of this crime. Failing to show that the item was created in order to “Trick” another, would mean there is insufficient evidence to prove you guilty of this charge. For example, if you have Oregano in a bag, that likely is not an imitation drug created to look like marijuana, so in this case, you would not be guilty of the crime, since there is insufficient evidence of your guilt.

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