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Section 18-18-420 (4) of the Colorado Revised Statutes (C.R.S.) provides:
An “imitation controlled substance” means a substance that is not the controlled substance that it is purported to be but which, by appearance, including color, shape, size, and markings, by representations made, and by consideration of all relevant factors as set forth in section 18-18-421, would lead a reasonable person to believe that the substance is the controlled substance that it is purported to be.
18-18-421 C.R.S. (1) provides:
In determining whether a substance is an imitation controlled substance, the trier of fact may consider, in addition to all other relevant factors, the following:
(a) Statements by an owner or by anyone in control of the substance concerning the nature of the substance or its use or effect;
(b) Statements made to the recipient that the substance may be resold for inordinate profit which is more than the normal markup charged by legal retailers of similar pharmaceutical products;
(c) Whether the substance is packaged in a manner normally used for illicit controlled substances;
(d) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;
(e) The proximity of the imitation controlled substance to any controlled substances when conduct purported to be illegal under this article is observed.
The difference between an imitation and a synthetic controlled substance
Imitation controlled substances or counterfeit substances are drugs intended to be mistaken for the real thing. They are sometimes known as fake or “bunk” drugs.
A synthetic controlled substance (“designer drug”), on the other hand, doesn’t purport to be another drug. It is an alternative to a controlled substance that is intended to be chemically similar and to produce a similar effect. Unlike an imitation or counterfeit drug, it might or might not look like its “real” equivalent.
Examples of synthetic controlled substances include:
2. What does Colorado’s laws on imitation drugs prohibit?
Sale, manufacture, distribution and possession for sale
18-18-422 C.R.S. makes it unlawful for a person to manufacture, distribute, or possess with intent to distribute an imitation controlled substance.
To sustain a conviction under 18-18-422 C.R.S., you do not need to know that the substance is fake. If you knowingly represent that a drug is a controlled substance, it doesn’t matter whether you actually know that it’s a fake or you mistakenly believe that it is real. Your actual knowledge of the nature of the substance is irrelevant.1
Advertising or solicitation for an imitation controlled substance
18-18-422 C.R.S. also makes it unlawful to place in a newspaper, magazine, handbill, or other publication, or to post or distribute in a public place, an advertisement or solicitation that you know will promote the distribution of imitation controlled substances.
Exception for authorized professionals
Colorado’s law prohibiting the sale of imitation controlled substances does not apply to practitioners – whether licensed, registered, or otherwise – who are authorized by the state of Colorado to possess, administer, dispense, or distribute a controlled substance, if the distribution, possession, dispensing, or administering of the imitation controlled substance is done in the lawful course of their professional practice.2
3. Colorado imitation drug penalties
Possession for sale, sale, manufacture, or distribution of an imitation controlled substance
Manufacturing, selling or distributing an imitation drug or possessing one with the intent to sell it is usually a Colorado level 4 drug felony.
Consequences of selling or intending to sell an imitation controlled substance can include:
6 months-1 year incarceration, and/or
A fine of $1,000-$100,000.
However, a violation of 18-18-422 C.R.S. becomes a Colorado level 3 drug felony when an adult distributes an imitation controlled substance to a minor and the adult is at least two years older than the minor.
As a level 3 drug felony, sale of an imitation drug can be punished by:
Penalties for advertising an imitation controlled substance can include:
6-18 months in jail, and/or
A fine of $500-$5,000.
4. Defenses to Colorado imitation drug charges
The best defense for a Colorado drug crime depends on the specific facts of your case. But common defenses to manufacturing, selling or possessing for sale an imitation controlled substance often include (without limitation):
The drugs weren’t yours and you exercised no control over them,
You didn’t know you possessed the drugs,
You didn’t intend to sell the drugs,
You didn’t sell or advertise the substance,
You were authorized by the state of Colorado to sell controlled substances and were selling the drug(s) in compliance with state law,
You were a victim of police misconduct (such as entrapment), or
It is NOT a defense, however, that you believed that the substance you sold or possessed for sale was an actual controlled substance. As long as you knowingly represented that it was a controlled substance, you are guilty of this offense.
Colorado Legal Defense Group 4047 Tejon Street Denver CO 80211 (303) 222-0330