Health and Safety Code § 109575 HS – Manufacture of Imitation Controlled Substance

Health and Safety Code § 109575 HS is the California statute that makes it a crime for a person knowingly to manufacture, distribute, or possess with the intent to distribute an imitation controlled substance. A conviction is a misdemeanor that carries a penalty of up to 6 months in county jail and a fine of up to $1000.00.

HSC 109575 is one of two California statutes regarding these substances.

The language of the code section reads as follows:

109575. 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.

Examples

• Carlos uses items in his pantry to make a substance that looks like cocaine.
• Juanita sells a neighborhood kid a packet of imitation “crank.”
• Rob carries packs of imitation dope in his backpack while he walks to a local park to sell them.

Defenses

Luckily, there are several legal defenses that a person can raise if accused. These include showing that:

• there was no imitation controlled substance involved,
• the defendant was arrested after an unlawful search and seizure, and/or
• the defendant was falsely accused.

Penalties

The manufacturing and distribution of an imitation controlled substance is charged as a misdemeanor (as opposed to an infraction or a felony). The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.

Please note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is prohibited under Health and Safety Code 109575 HS?
• 2. Are there legal defenses?
  • 2.1. No imitation controlled substance
  • 2.2. Unlawful search and seizure
  • 2.3. Falsely accused
• 3. Penalties, Punishment, and Sentencing
• 4. Related Offenses
  • 4.1. Sale of an imitation controlled substance – HSC 11355
  • 4.2. Possession of a controlled substance – HSC 11350
  • 4.3. Sale of a synthetic stimulant – HSC 11375.5

1. What is prohibited under Health and Safety Code 109575 HS?

Health and Safety Code 109575 is the California statute that makes it a crime for a person to knowingly:

• manufacture,
• distribute, or
• possess with the intent to distribute

an imitation controlled substance.¹

Note that a California court has ruled that this statute does not violate the United States Constitution for being vague.²

An “imitation controlled substance” is basically a counterfeit drug. It is intended to be visually mistaken for the real thing.

The statute sets forth the legal definition of an imitation controlled substance. According to this statute, this substance is one of two things.

First, it can be:

• a product specifically manufactured to resemble the physical appearance of a controlled substance, and
• a product that a reasonable person would not be able to distinguish from a real controlled substance by outward appearances.³

Or, according to the code section, an imitation controlled substance can be:

• a product that is made to look like a real controlled substance, and
• a product that a reasonable person would believe that, if taken, it would have a stimulant or depressant effect like a real drug.⁴

2. Are there legal defenses?

A person accused of violating this statute can raise a legal defense. A good defense can work to reduce or even dismiss a charge.

Three common defenses to alleged violations of this statute are:

1. no imitation controlled substance,
2. unlawful search and seizure, and/or
3. falsely accused.

2.1. No imitation controlled substance

Please note that HSC 11357.5 only applies to imitation controlled substances – as defined in HSC 109550. Thus, a solid legal defense is for a party to show that, while he may have made or distributed a substance, it was not an imitation controlled substance.

2.2. Unlawful search and seizure

The Fourth Amendment to the U.S. Constitution declares that we have the right to be free from unreasonable “searches and seizures” by law enforcement. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

2.3. Falsely accused

Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. People get falsely accused out of

• jealousy,
• revenge, and
• anger.

Thus, it is a valid defense for a defendant to say that a party falsely accused him of violating HSC 109575.

3. Penalties, Punishment, and Sentencing

A violation of Health and Safety Code 109575 is a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.⁵

Please note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

4. Related Offenses

There are three crimes related to the illegal manufacture or distribution of an imitation controlled substance. These are:

1. sale of an imitation controlled substance – HSC 11355,
2. possession of a controlled substance – HSC 11350, and
3. sale of a synthetic stimulant – HSC 11375.5.

4.1. Sale of an imitation controlled substance – HSC 11355

Health and Safety Code 11355 HS is the California statute that makes it a crime for a person to substitute an imitation controlled substance after offering to sell a real drug.⁶

A violation of HSC 11355 is a California wobbler offense, meaning that it can be punished as either a misdemeanor or a felony in the prosecutor’s discretion.

If charged as a misdemeanor, it carries a punishment of one year in county jail.⁷

If charged as a California felony, the penalty is up to three years in county jail.⁸

4.2. Possession of a controlled substance – HSC 11350

Health and Safety Code 11350 HS prohibits possessing a controlled substance without a valid prescription.⁹

A “controlled substance” is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States “Controlled Substances Act”.

Controlled substances covered by HSC 11350 include narcotics and other illegal drugs such as cocaine, heroin and LSD. The law also applies to prescription drugs such as hydrocodone (Vicodin), oxycodone (Oxycontin) and codeine.

A violation of HSC 11350 is usually charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for up to one year, and/or
• a maximum fine of $1,000.¹⁰

4.3. Sale of a synthetic stimulant – HSC 11375.5

Health and Safety Code 11375.5 HS is the California statute that makes it a crime for a person to either:

• sell or give synthetic stimulants to someone, or
• use or possess synthetic stimulants.¹¹

Synthetic stimulants are so-called “designer drugs” and they are designed to produce effects similar to:

• cocaine,
• LSD,
• MDMA, and/or
• methamphetamine.¹²

The illegal sale of synthetic stimulants is a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.¹³

The illegal possession or use of the same can be charged as either an infraction or a misdemeanor depending on the number of times the offense was committed.

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