The definition of the crime of “manufacturing a controlled substance” varies between states. But all states (and the federal government) consider it to be a crime to make or produce illegal substances, not just to possess them.
That said, there is disagreement among courts and in state laws about
- how much alteration of a substance is required for it to be considered manufacturing,
- whether producing precursor chemicals counts as manufacturing, and
- whether marijuana cultivation falls under drug manufacturing laws.
What does it mean to manufacture a controlled substance?
Generally, manufacturing a controlled substance means producing an illegal drug. However, there are details in this definition that can create complexities. Each state’s criminal statute and common law can alter the definition slightly.
All states make it unlawful to manufacture a controlled substance. However, different states use different words in the criminal statute. Even when the words are the same, each state’s court system can interpret them differently. These varying words and interpretations can lead to different results in different states.
For example, California state law punishes anyone who
“manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance.”1
Nevada, meanwhile, makes it a crime to “manufacture or compound a controlled substance other than marijuana.”2 It defines “manufacture” as
“the production, preparation, propagation, compounding, conversion or processing of a substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.”3
Texas’ law is similar.4
Some of the most common and obvious nuances to these drug offenses include whether:
- simply possessing the necessary ingredients is enough,
- partially manufacturing a drug, or only being involved for some of the stages of manufacture, is sufficient,
- whether the word “manufacture” includes growing or cultivating plants, like marijuana,
- manufacturing a drug necessarily includes the crime of possessing the drugs, and
- how much, or even whether, the drug needs to be altered for it to amount to “manufacturing.”
Different states and courts have provided different answers to some of these issues. Getting the legal advice of an experienced drug crime lawyer or criminal defense lawyer is the best way to understand the implications of these differences fully.
Is it enough to have the right drugs?
Generally, it is not enough for a conviction for drug manufacturing if the defendant merely had the right drugs to make a controlled substance. State laws require evidence that the controlled substance was actually being produced.
This is the case in Colorado. The owner of a private chemical laboratory was arrested and charged with drug manufacturing. Law enforcement had seized a large amount of the legal drug phenylacetoacetonitrile. When combined with sulphuric or phosphoric acid, both of which were also found in the lab, this drug can create phenyl-2-propanone (P2P). P2P is a Schedule II drug that can also be used to synthesize the drug speed.
The appeals court overturned the defendant’s conviction because phenylacetoacetonitrile can also be used with other drugs found in the lab to make perfume esters.5
What about partial manufacture?
You do not have to be a part of the manufacturing process from beginning to end to be charged. You can play a small role in the drug’s manufacture and still face criminal charges if you know the drug is illegal.6
The manufacture of chemical precursors is less straightforward. Some states prohibit it, if you know that the precursor would be used to make a controlled substance. Others do not.
A chemical precursor is a substance that can be used to make an illegal drug.
In California, for example, it is illegal to manufacture precursors to a controlled substance, but only if you know what the final product will be. One case involved a meth lab. There were 2 defendants. One only extracted ephedrine and pseudoephedrine – a necessary first step toward methamphetamine. However, the extraction does not produce a controlled substance.
The court ruled that he could only be convicted if he knew the other defendant would make meth.7
In Texas, the law does not target the manufacturing of precursors. However, it makes it a crime to transfer or traffic precursors in order to manufacture a controlled substance.8
Does it include growing marijuana?
Where recreational marijuana is still not legal, some states consider growing a marijuana plant a form of drug manufacturing. Others have specific criminal statutes that cover the practice.
Federal law is one example where growing marijuana plants can be considered drug manufacturing.9
Illinois is one of the states with its own law covering the growth of marijuana plants.10
Is drug possession a lesser included offense?
Drug possession is generally a lesser included offense to drug manufacture.11 Manufacturing drugs always involves having the drugs on hand.
This means that prosecutors can file concurrent charges for manufacturing and possessing a controlled substance. If there is insufficient evidence to support drug manufacturing or if the police found the drugs through an illegal search, they may still be able to secure a conviction for possession. This is usually a misdemeanor drug charge that carries up to a year of jail time.
Are minor alterations to a drug enough to be considered manufacturing?
Most states require at least some alteration to the drug for it to constitute the crime of manufacturing. However, some states have broad criminal statutes that include activities unrelated to the drug.
Texas and Nevada, for example, have drug manufacturing statutes covering packaging or labeling the container that holds the drug.12
The Supreme Court of Nevada has even said that the process of cutting, or diluting a drug to increase its volume for sale, could be considered drug manufacturing.13
What is a controlled substance?
A controlled substance is a drug or chemical compound regulated by law. These substances are regulated by either:
- criminal statutes that make them illegal, or
- the need for a valid prescription from a medical professional.
States and the federal government have Controlled Substances Acts that sort controlled substances into 5 lists, or Schedules. These Schedules are arranged based on how likely the drug will be abused, and how medically useful it is. Dangerous drugs with no recognized medical use are in Schedule I, and include:
- heroin,
- LSD,
- ecstasy,
- marijuana or cannabis, and
- certain substances containing fentanyl.
Medically useful drugs that are unlikely to lead to addiction are in Schedule V. These include lots of medications and prescription drugs, like:
- cough medicine with low amounts of codeine, like Robitussin AC,
- Motofen,
- Lomotil, and
- Lyrica.
In between these extremes are:
- Schedule II,
- Schedule III, and
- Schedule IV drugs.
What are the penalties of a conviction for drug manufacturing charges?
Different states can impose their own penalties for drug manufacturing. Additionally, the type of drug being manufactured often matters, as well. Generally, these drug crimes will be a felony offense, though.
In California, for example, a felony conviction for the manufacture of a controlled substance carries:
- a sentencing range of 3, 5, or 7 years in state prison, and
- up to $50,000 in fines.14
Many other states also use sentencing enhancements to increase the penalties of a manufacturing conviction if certain drugs were made, like:
- PCP,
- GHB, and
- methamphetamine.
With such a long potential prison sentence, defendants in these drug cases should strongly consider consulting a DUI/criminal defense attorney from a reputable law firm.
Legal References:
- California Health and Safety Code 11379.6(a) HS.
- Nevada Revised Statute 453.322.
- Nevada Revised Statute 453.091(1).
- Texas Health and Safety Code sections 481.112 and 481.002(25).
- People v. Noland, (Colo. App. 1987) 739 P.2d 906.
- See, for example, California Criminal Jury Instructions (CALCRIM) No. 2330 and People v. Jackson, (1990) 218 Cal.App.3d 1493.
- People v. Pierson, (2001) 86 Cal.App.4th 983.
- Texas Health and Safety Code 481.137.
- 21 USC 841.
- 720 Illinois Compiled Statutes 550/8.
- See, for example, Patton v. People, (Colo. 2001) 35 P.3d 124.
- Texas Health and Safety Code 481.002(25) and Nevada Revised Statute 453.091(1).
- Sheriff, Clark County v. Hughes, (1983) 665 P.2d 242.
- California Health and Safety Code 11379.6(a) HS.
