CALIFORNIA HEALTH AND SAFETY CODE 11355 HS – SELLING FAKE DRUGS

Is it illegal to sell fake drugs? Yes, under California Health and Safety Code 11355 HS, it is a crime arranging or offering to sell, furnish, or transport a controlled substance and subsequently providing a counterfeit or imitation drug. This offense may be charged as either a misdemeanor or a felony, with a potential penalty of up to 3 years’ imprisonment.

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.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC&sectionNum=11355

ELEMENTS – SELLING FAKE DRUGS IN CALIFORNIA

In order to establish the guilt of a defendant for the sale of a substitute substance, a prosecutor must demonstrate the following elements:

• The defendant willingly agreed, consented, offered, arranged, or negotiated to sell, transport, administer, give, furnish, or deliver a controlled substance.
• AND subsequently, the defendant provided, transported, administered, gave, furnished, or delivered a substance as a substitute for the initially agreed-upon controlled substance.

Selling means exchanging the substance for money, services, or something valuable. Transporting is moving the substance from one place to another, even if it’s a short distance. The crime is completed when the substitute substance is actually delivered – just arranging or offering to sell is not enough.

Administering a substance is when it’s given to someone directly through injection, inhalation, ingestion, or other means.

Health and Safety Code 11355 is not about punishing fraud against a victim. Instead, it aims to punish and deter the intention to traffic illegal drugs, and hold the defendant responsible for any harm caused to the victim.

EXAMPLE

A man is approached by a young woman who asks to buy ecstasy. Despite not having any drugs, the man decides to sell an aspirin to the woman for $20, claiming it is ecstasy. The woman is an undercover officer who quickly arrests him. The aspirin is tested at the crime lab and found to be harmless. Despite this, the man could still face prosecution for selling a substitute substance, as it goes against California Health & Safety Code Section 11355 HSC.

In the similar situation if the man is reached out by a different woman who expresses a desire to feel good. The man gives her an aspirin pill in exchange for $20, without making any specific claims about the pill’s nature. In that case, the man would likely not be considered guilty of selling a substitute substance because there was no explicit agreement to sell a controlled substance from the beginning.

PENALTIES, PUNISHMENT, AND SENTENCING

Violating this statute can be considered a wobbler offense, which means it can be charged as either under misdemeanor crimes or felony crimes.

• If charged as a misdemeanor, the potential punishment is up to one year in the county jail. Alternatively, the judge may give the defendant misdemeanor probation instead of jail time.
• If charged as a felony, the potential punishment is imprisonment in jail for 16 months, two years, or three years. Similarly, the judge may give the defendant felony probation instead of jail time.

HOW TO FIGHT CHARGES UNDER HEALTH AND SAFETY CODE 11355 HS

There are three common defenses that someone accused of violating the California Health & Safety Code Section 11355 HSC can use to potentially reduce or dismiss the charges:

• No delivery: One possible defense is to show that there was no actual delivery or arrangement for delivery of a substitute substance. If the accused can demonstrate that they did not complete the sale or delivery, it can be a valid defense.
• Unlawful search and seizure: The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures by law enforcement. If the authorities obtained evidence through an unlawful or unreasonable search, that evidence may be excluded from the case, potentially leading to reduced or dismissed charges.
• Coerced confession: California law prohibits police from using overbearing tactics to force someone into confessing. If a person can show that their confession was coerced, the judge may exclude it from the evidence or even dismiss the case entirely if the confession was made under pressure and the accused did not actually commit the crime.

IMMIGRATION CONSEQUENCES

• Deportation: A conviction for selling fake drugs could classify as a crime involving moral turpitude and/or an aggravated felony. Both of these categories make a non-citizen deportable from the United States.
• Inadmissibility: If you leave the United States after a conviction, you may be deemed inadmissible upon trying to re-enter. This means you could be barred from returning, even if you are a lawful permanent resident.
• Loss of Naturalization Eligibility: A conviction could prevent you from ever becoming a naturalized U.S. citizen, as you must demonstrate good moral character.

This offense is not considered a strike offense under the California Three Strikes law, nor is it classified as a sex offense under PC 290. However, if convicted, there is a possibility of facing consequences such as losing a professional license. It is important to note that this offense may be considered a crime of moral turpitude and is categorized as an aggravated felony due to its involvement with drugs.

Please note the consequences depend on the exact charges, amount of drugs involved, and any aggravating factors. Some dispositions may not count as convictions for immigration purposes, even if they are convictions in criminal court. It is CRUCIAL to consult with both a criminal defense attorney and an experienced immigration attorney immediately if you are facing charges of selling fake drugs. They can assess the specific facts of your case and tailor the best possible defense strategy to minimize the potential impact on your immigration status. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

RELATED CRIMES

• Possession of a Controlled Substance – California Health & Safety Code Section 11350 HSC
• Possession, Sales and Transportation of Methamphetamines – California Health & Safety Code Section 11377, 11378 HS and 11379 HSC
• Sales and Transportation of Controlled Substances – California Health & Safety Code Section 11352 HSC
• Manufacture and distribution of an imitation controlled substance – HS 109575
• Sale of a synthetic stimulant – HS 11375.5

HIRE DRUG CRIME DEFENSE LAWYER

Facing a criminal conviction, especially for drug-related offenses like HS 11355, can be complicated. It is important to have a knowledgeable and experienced advocate by your side. If you or someone you know has been arrested or charged with selling a fake drug, consult with a Los Angeles Criminal Defense Attorney as soon as possible.

Los Angeles Criminal Defense Lawyer Cyrus Tabibnia has over 18 years of experience and brings a unique perspective to defending drug cases, including crimes like this. He is known for being an aggressive litigator who fights hard for his clients and has earned respect within the court system.

To learn more about Health & Safety Code 11355 HS and to schedule a free consultation, you can contact Los Angeles Criminal Defense Attorney Cyrus Tabibnia at Tabibnia Law Firm by calling 866-713-2159.

Tabibnia Law Firm is serving its clients throughout Southern California including Santa Monica, Los Angeles, Orange County, Beverly Hills, San Fernando Valley, Ventura county, Riverside County, Sherman Oaks, Encino, Pasadena, Burbank, Glendale, Long Beach, Palmdale, Santa Clarita, Monterey Park, La Puente, Van Nuys, Pomona, Manhattan Beach, West Covina, Whittier, Downey, Woodland Hills, Norwalk, Torrance, Redondo Beach, San Bernardino, Walnut Creek, Inglewood, Lancaster, Westlake Village and nearby areas.

Sources:

California Code, Health and Safety Code – HSC § 11355 | leginfo.legislature.ca.gov | California Health and Safety Code Sections 11350-11356.5 Formerly Classified as Narcotics | Cal. Health & Saf. Code § 11355