"Imitation Drug" Crimes in Nevada (NRS 453.332)
Explained by Las Vegas Criminal Defense Attorneys

Nevada sees many cases where drug dealers sell fake drugs to unsuspecting buyers in order to save money. Even though these imitation drugs are not made of illegal substances, anyone who makes, sells, distributes, advertises or possesses imitation drugs still face criminal charges under Nevada drug laws.

Defenses:

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Three common defenses to Nevada imitation drug charges are:

  1. The police performed an illegal Nevada search in the case;
  2. The substance in the case was not meant to be passed off as drugs;
  3. The defendant had no knowledge of the imitation drugs

Penalties:

A first- or second-time offense of possessing imitation drugs for personal use or advertising imitation controlled substances is a gross misdemeanor in Nevada carrying up to:

  • 364 days in jail, and/or
  • $2,000 in fines

Subsequent offenses are a category C felony in Nevada carrying up to:

Meanwhile, it is a misdemeanor in Nevada to sell, manufacture, distribute, or possess for personal use imitation drugs. The punishment is:

  • 6 months in jail, and/or
  • $1,000 in fines

But if the defendant is 18 or older and the person buying or receiving the drugs is under 18, the charge will be for a category C felony carrying:

  • 5 years in prison, and
  • maybe $5,000 in fines, and
  • maybe restitution for the child's drug rehabilitation

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of imitation controlled substances. Keep reading to learn the definition, how to fight the charges, and what punishments Nevada courts can impose.

Definition of "Imitation Drug" Crimes in Nevada

Many of the drugs bought and sold in Nevada are not actual drugs at all...they are fakes that drug dealers claim are the real thing. This typically happens to unsuspecting tourists who may not be very familiar with drugs and are in a rush to buy them. And drug dealers have an incentive to sell fake drugs because it carries lesser penalties than selling real drugs.

Although imitation drugs are not comprised of anything illegal, the acts of making, selling, distributing, or possessing imitation drugs are criminal offenses.1 Henderson criminal defense attorney Michael Becker illustrates Nevada imitation drug laws with an example:

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A substance is considered an "imitation drug" in Nevada if someone passes it off as a real drug or it appears as a real drug.
Example: Tom comes into Las Vegas for a bachelor party weekend. He flags down a drug seller loitering in front of The Palms. The seller sees that Tom knows nothing about drugs and thinks he can chump him, so the seller gives him a baggie of sugar pills instead of X. An undercover cop witnesses the transaction and arrests Tom for possessing imitation drugs and the seller for selling imitation drugs.

In the above example, it makes no difference that the substance involved is harmless sugar pills. The seller sold them as ecstasy, so he is liable for selling imitation drugs. And Tom believed he was buying ecstasy, so he is liable for possessing imitation drugs. Therefore, the defendant's state of mind is the most important element in Nevada imitation drug cases.

Imitation drugs in Nevada:

The legal definition of an "imitation controlled substance” is a substance, not a controlled substance, which:

  • in the form distributed is shaped, marked or colored so as to lead a reasonable person to believe it is a controlled substance; or
  • is represented to be a controlled substance

In other words, an imitation drug is a material that someone is trying to pass off as a controlled substance or that appears to be a controlled substance. Examples of materials that drug scammers may pass off as real drugs are:

  • flour or baking powder (to look like cocaine)
  • dried tobacco and leaves (to look like marijuana)
  • talcum powder (to look like heroin)
  • aluminum sulphate (to look like crystal meth)

Nevada courts consider several factors when determining whether a substance in a case qualifies as an imitation drug.2 Three of these variables include:

  1. Statements made by the defendant regarding the nature of the substance, its use or effect;
  2. Statements made by the defendant regarding the recipient's ability to resell the substance at a substantially higher price than is customary for the substance; and
  3. Whether the substance is packaged in a manner normally used for illicit controlled substances, such as evenly measured baggies or containers.

Defenses to "Imitation Drugs" in Nevada:

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Possessing innocent materials like talcum powder are not illegal in Nevada as long as they are not passed off as real drugs such as cocaine or heroin.

The defenses to Nevada charges involving imitation drugs are similar to those for fighting regular drugs charges. The three most common defense strategies include:

  1. Illegal search. Law enforcement has a Constitutional duty to secure valid search warrants before conducting a search (or else they need goods reasons to conduct a warrantless search). If police violate warrant regulations when investigating a case for imitation drugs, a defense attorney can file a "motion to suppress evidence in Nevada" that asks the judge to exclude any damning information found from that unlawful search. If the judge agrees, the D.A. may decide to drop the imitation drug charges for lack of proof.
  2. No imitation drugs. It is not uncommon for police looking to make an arrest to mistake innocent substances for imitation drugs. If the defense attorney can show that the flour, baking soda, or bath salts in a case were never intended to be passed off as imitation drugs, the defendant should not be prosecuted.
  3. No knowledge of the drugs. It is also common for police to mistake someone for possessing imitation drugs when in fact he/she had no idea that the imitation drugs were even there. This usually occurs in homes or at parties where more than on person has access to the imitation drugs. Henderson criminal defense attorney Neil Shouse gives an example of how this can happen:

Example: Joni and Jane are roommates in a Las Vegas apartment. Joni and Jane share a dresser in the living room, where Joni keeps imitation cocaine to sell unbeknownst to Jane. Acting on a tip, Las Vegas Metro Police search the apartment and find the imitation cocaine. Since Jane is home, the arrest her and book her at the Clark County Detention Center. But as long as the prosecutor cannot prove beyond a reasonable doubt that Jane knew about the fake cocaine, she should not be convicted of possessing imitation drugs.

Another, rarely-used defense to Nevada imitation drug charges applies only when the defendant is a scientist or medical practitioner: These defendants may be allowed to use imitation drugs as a placebo in the course of their professional practice or research.3

Penalties for "Imitation Drugs" in Nevada

The punishment for unlawful uses of imitation controlled substances in Nevada depends on three factors:

  1. What the defendant was doing with the imitation drugs; and
  2. The ages of the people involved; and
  3. The defendant's criminal history

Using or Possessing Imitation Drugs in Nevada:

Nevada penalties get harsher for each successive conviction of using imitation controlled substances or possessing imitation controlled substances with intent to use them. First- and second-time convictions are prosecuted as gross misdemeanors in Nevada. The penalties include:

  • up to 364 days in jail; and/or
  • up to $2,000 in fines.

Meanwhile, a third-time or successive conviction of using or possessing for personal use imitation controlled substances is a category C felony in Nevada. The punishment includes:

  • 1 - 5 years in prison; and
  • maybe $5,000 in fines

Note that possessing imitation drugs carries laxer penalties in Nevada than possessing actual drugs. Learn more about the Nevada crime of drug possession for personal use.

Also note that possessing imitation drugs in Nevada actually carries harsher penalties than selling or manufacturing imitation drugs, as explained just below.

Possessing for Sale or Selling Imitation Drugs in Nevada:

Selling imitation drugs or possessing imitation drugs with the intent to sell them is typically prosecuted as a misdemeanor in Nevada. The sentence includes:

  • up to 6 months in jail; and/or
  • up to $1,000 in fines

But this offense will instead be prosecuted as a category C felony if the defendant was 18 or older and if the person buying the imitation drugs was under 18. The penalty includes:

  • 1 - 5 years in prison, and
  • maybe $5,000 in fines, and
  • maybe restitution for the child's drug rehabilitation

Note that it does not matter if the defendant was unaware the person he/she was selling the imitation drugs to was underage. The defendant still faces felony charges even if he/she truly believed the person was an adult.

Also note that Nevada levies harsher penalties for selling or possessing for sale actual drugs than for imitation drugs. Learn more in our articles on the Nevada crime of possessing drugs with the intent to sell and the Nevada crime of selling drugs.

Manufacturing or Distributing Imitation Drugs in Nevada:

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Possessing imitation drugs for personal use carries more stringent penalties than selling imitation drugs in Nevada.

Manufacturing imitation drugs or distributing imitation drugs is typically prosecuted as a misdemeanor. The sentence includes:

  • up to 6 months in jail; and/or
  • up to $1,000 in fines

However, this offense will instead be charged as a category C felony if the defendant was 18 or older and if the person receiving the imitation drugs was under 18. The penalty includes:

  • 1 - 5 years in prison, and
  • maybe $5,000 in fines, and
  • maybe restitution for the child's drug rehabilitation

Note that it makes no difference if the defendant was ignorant that the person he/she was giving the imitation drugs to was under 18. The defendant would still be charged with a felony even if he/she genuinely though that person was 18 or older.

Also note that manufacturing or distributing bona fide drugs carries harsher penalties in Nevada than that for imitation drugs. Learn more in our article on the Nevada crime of unauthorized drug acts.

Advertising or Soliciting Imitation Drugs in Nevada:

Nevada penalties get harsher with each successive conviction of advertising or soliciting imitation controlled substances. First- and second-time convictions are prosecuted as gross misdemeanors in Nevada. The penalties include:

  • up to 364 days in jail; and/or
  • up to $2,000 in fines.

Meanwhile, a third-time or successive conviction of advertising or soliciting imitation controlled substances is a category C felony in Nevada. The punishment includes:

  • 1 - 5 years in Nevada State Prison; and
  • maybe $5,000 in fines

Note that a person should not be convicted of advertising or soliciting imitation drugs unless he/she had "reasonable knowledge" that the advertisement was meant to promote the distribution of an imitation drug.4 For example, newspaper editors who had no reasonable knowledge that an ambiguous ad in their paper was actually promoting imitation drugs should not be convicted of advertising or soliciting imitation drugs.

Arrested? Call a lawyer...

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Call us at 702-DEFENSE (702-333-3673).

If you have been arrested for "imitation drugs" in Nevada, call our Las Vegas criminal defense attorneys for a free consultation at 702-DEFENSE (702-333-3673). We may be able to convince the D.A. to lessen or even drop the charges without a trial.

For information on the sale of an imitation controlled substance in California | Health and Safety Code 109575 and 11355, go to our article on sale of an imitation controlled substance in California | Health and Safety Code 109575 and 11355.

Legal References:

1NRS 453.332 Unlawful acts relating to imitation controlled substances; penalties.

1.  Except as otherwise provided in subsection 6, it is unlawful for a person to manufacture, distribute, sell or possess with the intent to distribute or sell an imitation controlled substance.

2.  Except as otherwise provided in subsection 3, a person who violates subsection 1 is guilty of a misdemeanor.

3.  A person who is 18 years of age or older who distributes or sells an imitation controlled substance to a person who is under the age of 18 years is guilty of a category C felony and shall be punished as provided in NRS 193.130. In addition to any other penalty, the court may order the convicted person to pay restitution for any reasonable costs incurred for the participation of the person to whom he or she distributed or sold the imitation controlled substance in a program for the treatment of the abuse of controlled substances. If the court orders the convicted person to make such restitution, the court shall notify the parent, guardian or other person legally responsible for the person to whom the imitation controlled substance was distributed or sold that such restitution has been ordered.

4.  A person who:

(a) Uses or possesses with the intent to use an imitation controlled substance; or

(b) Advertises or solicits in any manner with reasonable knowledge that the advertisement or solicitation is to promote the distribution of an imitation controlled substance,

--> is guilty of a gross misdemeanor upon the person's first and second convictions, and upon a third or any further conviction, is guilty of a category C felony and shall be punished as provided in NRS 193.130.

5.  For the purposes of this section:

(a) “Distribute” means the actual, constructive or attempted transfer, delivery or dispensing to another of an imitation controlled substance.

(b) “Imitation controlled substance” means a substance, not a controlled substance, which:

(1) In the form distributed is shaped, marked or colored so as to lead a reasonable person to believe it is a controlled substance; or

(2) Is represented to be a controlled substance. In determining whether such a representation was made, the court shall consider, in addition to all other logically relevant factors:

(I) Statements made by the defendant regarding the nature of the substance, its use or effect.

(II) Statements made by the defendant regarding the recipient's ability to resell the substance at a substantially higher price than is customary for the substance.

(III) Whether the substance is packaged in a manner normally used for illicit controlled substances.

6.  This section does not apply to the manufacture, distribution, sale or possession of an imitation controlled substance for use as a placebo by a practitioner in the course of his or her professional practice or research.

2Id.

3Id.

 

4 Id.

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