11355 HS – Selling Fake Drugs – California Law & Penalties

Health and Safety Code 11355 HS makes it a crime to arrange or offer to sell, furnish or transport a controlled substance, and then to provide a fake or imitation drug instead. In other words, it is not a defense to the charge that the item was not really a controlled substance.

This section can be filed as a misdemeanor or a felony and carries a penalty of up to 3 years in jail.

The language of the statute reads as follows:

11355. Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug to any person, or who offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and who then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any such controlled substance shall be punished by imprisonment in the county jail for not more than one year, or pursuant to subdivision (h) of Section 1170 of the Penal Code.

Examples

• Nia agrees to sell a friend meth, but she sells him a bag of imitation crank instead.
• Marcos agrees to transport a large amount of cocaine to a local drug pusher, but rather than deliver the real drug, he delivers fake cocaine.
• Mark sets up a sale of oxycodone, but he ends up selling his “client” a fake supply of the drug.

Defenses

Luckily, there are several legal defenses that a person can raise if accused of a crime under HS 11355. These include showing that:

• there was no delivery of a substitute substance,
• the defendant was arrested after an unlawful search and seizure, and/or
• the defendant was arrested after a coerced confession.

Penalties

A violation of this statute is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by imprisonment in the county jail for up to one year.

If charged as a felony, the crime is punishable by imprisonment in jail for:

• 16 months,
• two years, or
• three years.

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

• 1. Is it a crime to sell or provide fake drugs in California?
• 2. How can I fight a charge under Health and Safety Code 11355 HS?
  • 2.1. No delivery
  • 2.2. Unlawful search and seizure
  • 2.3. Coerced confession
• 3. What is the potential jail time?
• 4. Related Offenses
  • 4.1. Manufacture and distribution of an imitation controlled substance – HS 109575
  • 4.2. Possession of a controlled substance – HS 11350
  • 4.3. Sale of a synthetic stimulant – HS 11375.5

1. Is it a crime to sell or provide fake drugs in California?

Health and Safety Code 11355 is the California statute that makes it a crime for a person to:

1. arrange or offer to sell, give or transport a controlled substance, and
2. then deliver, or arrange to deliver, a fake drug instead.¹

Note that it is the actual delivery of the substitute substance that completes this crime – an arrangement or offer to sell is not enough.²

Further, HS 11355 does not aim to punish fraud against a victim.³ Rather, the goal of the statute is to:

• punish and deter the intent to traffic in illegal drugs, and
• punish the defendant for any harm caused to the victim.⁴

2. How can I fight a charge under Health and Safety Code 11355?

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 delivery,
2. unlawful search and seizure, and/or
3. coerced confession.

2.1. No delivery

Please recall that there must be an actual delivery of a substitute substance, or an arrangement for delivery of the same, for an accused to be found guilty under this statute. This means it is always a legal defense for a defendant to show that, while he may have tried to sell a substance, there was no final delivery.

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. Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

• the judge may exclude the confession from evidence, or
• the case could get dropped altogether if the party got pressured into confessing to a crime he didn’t commit.

3. What is the potential jail time?

A violation of this statute is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the offense is punishable by imprisonment in the county jail for up to one year.⁵

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

If charged as a felony, the crime is punishable by imprisonment in jail for:

• 16 months,
• two years, or
• three years.⁶

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

4. Related Offenses

There are three crimes related to the sale of a substitute substance. These are:

1. manufacture and distribution of an imitation controlled substance – HS 109575,
2. possession of a controlled substance – HS 11350, and
3. sale of a synthetic stimulant – HS 11375.5.

4.1. Manufacture and distribution of an imitation controlled substance – HS 109575

Health and Safety Code 109575 HS 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.⁷

An “imitation controlled substance” is basically a counterfeit drug. It is intended to be visually mistaken for the real thing.⁸

A violation of HS 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 $1,000.⁹

4.2. Possession of a controlled substance – HS 11350

Health and Safety Code 11350 HS prohibits possessing a controlled substance without a valid prescription.¹⁰

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”.

A violation of HS 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 $1,000.¹¹

4.3. Sale of a synthetic stimulant – HS 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.¹²

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

• cocaine,
• LSD,
• MDMA, and/or
• methamphetamine.¹³

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 $1,000.¹⁴

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.

For additional help…

If you or someone you know has been accused of a crime, per Health and Safety Code 11355, we invite you to contact us for a free consultation. We can be reached 24/7.

For similar charges in Colorado, please see our article on: Colorado Law re Sale or Manufacture of an Imitation Controlled Substance (18-18-422 C.R.S.).

And for similar charges in Nevada, please see our article on: “Imitation Drug” Crimes in Nevada (NRS 453.332) Explained by Las Vegas Criminal Defense Attorneys.

---

Legal References: