When Imitation is Instigation

The Utah Code contains a number of curiosities, not the least of which are those laws which govern the way imitation or counterfeit drugs are regarded by police officers and prosecutors alike.  Specifically, §58-37-1 and §58-37b-1 of the code instruct officials to regard imitation and counterfeit drugs – when encountered under particular circumstances – as violations of the law, and to penalize violators accordingly.  Whether or not you agree with the way these laws have been constructed and implemented, it is important to be aware of the specific conditions which might lead to an unexpected encounter with police officers, and which might incur criminal charges or arrest.


                The Imitation Controlled Substances Act – or §58-37b-4 of the Utah Code – declares with somewhat deceptive simplicity that “it is unlawful for any person to manufacture, distribute, or possess with intent to distribute, an imitation controlled substance.  Any person who violates this section is guilty of a Class A Misdemeanor.”  The law goes on to define an imitation controlled substance as “a substance designed or packaged to substantially resemble any legally or illegally manufactured controlled substance, but that is not: (a) a controlled substance; or (b) represented to be any legally or illegally manufactured controlled substance under Subsection 58-37-2(1)(i)(ii).”

                While quoting the law is all well and good, the real question is: what in the world does it mean?  In short, this law dictates that any person who is found in possession of any kind of substance that looks like it might be a drug (but is not actually a drug), whether they are trying to represent it as a drug or not, is in violation of this law.  This effectively means that an individual could be at risk of up to a year in jail and several thousand dollars in fines just for lending a plastic bag of flour to their neighbor!  An officer or witness need only be willing to testify that the flour appeared to them to be cocaine or the like.  Such a circumstance seems ridiculous, as it indeed would be; nevertheless, this law opens the way for any individual to be convicted of a Class A Misdemeanor on the simple condition that they are found distributing a substance that “substantially resemble[d]” a controlled substance, but in fact was not.


                Whereas the law governing charges of possession of imitation substances is broad almost to the point of uselessness, §58-37-1 of the Utah Code is nothing short of a quagmire.  This law – the Utah Controlled Substances Act – contains within its forest of clauses one particular section regarding what are known as counterfeit substances.  This act effectively makes the illegal possession of a controlled substance, or the possession of any substance represented in some way to be a controlled substance, a felony offense.  The only caveat to the law is that “a reasonable person” must believe that the substance has been either 1) distributed by “an authorized manufacturer,” or 2) that the substance is otherwise a “legal or illegal controlled substance.”

                On the surface, this section seems to render the law regarding Imitation Substances entirely superfluous, with the obvious addition of significantly more severe penalties: a felony conviction carries with it the potential for several years in prison, after all.  Yet while the spirit of this code seems primarily directed toward counterfeit prescription medicines, the law nevertheless specifically prohibits the possession of “any substance other than under Subsection (1)(i)(i) [the various legal or illegal controlled substances as identified by the law] that: (A) is falsely represented to be any legally or illegally manufactured controlled substance; and (B) a reasonable person would believe to be a legal or illegal controlled substance.”  Applied to the example listed in the Imitation Substances section, it would seem that the distribution of misidentified flour could land a person a lot more time than just a year in jail.

                All of this begs the question: how do authorities choose under which law to file charges in any given case?


                Fortunately, in 2009 the Utah Supreme Court had the opportunity to address the matter.  In a case known as State v. Jeffries, a man was charged with a felony possession of counterfeit substances for attempting to pass drywall off as cocaine and selling it to an undercover police officer.  In that case, the Court observed the same overlap of laws reflected in this article: both the Imitation Controlled Substances Act and the Counterfeit Substances Act appear to penalize the same criminal activity with distinct punishments.  To resolve the issue, the Court assumed that the legislature must have had a reason to distinguish between the two laws (there would be no other reason to have the laws address the same criminal activity), and concluded that a defendant could only be convicted of the greater crime of possession of counterfeit substances if the defendant was being charged with attempting to sell (or otherwise distribute) a fake product as a legal or lawful substance; otherwise, the charge could only be that of imitation.

                 In short, the example of a neighbor lending flour in small plastic baggies should not, as it turns out, be charged with possession of a counterfeit substance; rather, imitation substance is the most severe charge they should face.  That being said, in 2010 (one year after the Utah Supreme Court’s ruling), the law regarding counterfeit substances changed with the minor (and obscure) addition of the “reasonable person,” mentioned above.  While seemingly innocuous, this alteration does have the potential to merit further interpretation by the courts of Utah and, until the Utah Supreme Court has the opportunity to address the matter again (and perhaps even after), it may be necessary to fight to have charges reduced from counterfeit to imitation.

                In large part due to the similarly worded sections of the Utah Code concerning Imitation Substances and Counterfeit Substances, Utahns are regrettably vulnerable to criminal charges and convictions for what otherwise might be entirely innocent behavior.  If you do happen to get charged, do what you can to find an attorney who can argue for leniency on your behalf – we can all agree that knockoff prescription medicines should certainly warrant punishment, but nobody should ever go to jail over a bag of flour.

Photo Courtesy of:  Baitong333@freedigitalphotos.net

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