“Imitation or Fake Drug” Crimes in Nevada (NRS § 453.332)

Under NRS § 453.332, Nevada law makes it a crime to manufacture, sell, distribute, advertise, or possess imitation or “fake” drugs. A first offense is generally a gross misdemeanor punishable by up to 364 days in jail and a fine of up to $2,000.

Typical purchasers of imitation drugs are unsuspecting tourists who may not be very familiar with drugs and are in a rush to buy them. Plus drug dealers have an incentive to sell fake drugs because it carries lesser penalties than selling real drugs.

Three common defenses to Nevada imitation drug charges are:

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

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of imitation controlled substances:

• 1. What are imitation drugs in Nevada?
• 2. Are imitation drugs illegal?
• 3. What are the penalties?
• 4. How can I fight the charges?

1. What are 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. Three of these variables include:

1. Statements you made regarding the nature of the substance, its use or effect;
2. Statements you made 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.¹

2. Are imitation drugs illegal?

Although imitation drugs are not comprised of anything illegal, the acts of making, selling, distributing, or possessing imitation drugs are criminal offenses.²

Many drugs bought and sold in Nevada are not actual drugs at all. They are fakes that drug dealers claim are the real thing.

Example: Tom goes to 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.

Since Tom believed he was buying ecstasy, he is liable for possessing imitation drugs. Therefore, the defendant’s state of mind is the most important element in Nevada imitation drug cases.

3. What are the penalties?

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

1. What you were doing with the imitation drugs; and
2. The ages of the people involved; and
3. Your criminal history

Using or possessing imitation drugs:

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. 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. The punishment includes:

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

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

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. 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. The punishment includes:

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

Note that you should not be convicted of advertising or soliciting imitation drugs unless you 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.

Possessing for sale – or selling – imitation drugs:

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

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

• 1 – 5 years in prison, and
• possibly $5,000 in fines, and
• possibly restitution for the child’s drug rehabilitation

Note that it does not matter if you were unaware the person you were selling the imitation drugs to was underage. You still face felony charges even if you 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 possessing drugs with the intent to sell and selling drugs.

Manufacturing or distributing 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 you were 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 you were ignorant that the person you were giving the imitation drugs to was under 18. You would still be charged with a felony even if you genuinely thought that person was 18 or older.³

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 unauthorized drug acts.

4. How can I fight the charges?

The defenses to Nevada charges involving imitation drugs are similar to those for fighting regular drug 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 lawful reasons to conduct a warrantless search). If police violate warrant regulations when investigating a case for imitation drugs, your defense attorney can file a “motion to suppress evidence” that asks the judge to exclude any evidence 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 your 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, you 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 they had no idea that the imitation drugs were even there. This usually occurs in homes or at parties where more than one person has access to the imitation drugs.

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, they arrest her and book her at the Clark County Detention Center. Though 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.

A rarely-used defense to Nevada imitation drug charges applies only when you are a scientist or medical practitioner: You may be allowed to use imitation drugs as a placebo in the course of your professional practice or research.⁴

If you have been arrested for “imitation drugs” in Nevada, call our Las Vegas criminal defense attorneys for a consultation. Our Nevada drug lawyers may be able to convince the D.A. to lessen or even drop the charges without a trial.

In California? See our articles on Health and Safety Code 109575 HS and Health and Safety Code 11355 HS.

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