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Utah Legislature: House approves counterfeit-drugs measure

SALT LAKE CITY — A bill intending to straighten out the zig-zagging, overlapping legal delineations of how courts deal with someone arrested with a controlled substance that turns out to be an imitation was approved unanimously in the House on Friday.

HB225, which addresses fake substances being sold as the real thing — shards of sheetrock being sold as crack cocaine, for example — induced little debate before being approved 66-0.

Although misrepresenting an item for sale or selling anything that if ingested causes bodily harm are already spelled out in state law, the measure is necessary because harmful physical effects, regardless of whether a substance is an imitation or an imitation of an imitation, are real and not a joke, the bill's sponsor, Rep. Paul Ray, R-Clearfield, told fellow House members. Allowing the street drug market to take care of someone whose wares are misrepresented through traditional violent means from the clientele isn't enough, Ray said, noting the virtual elimination of fake amphetamine known as "cross tops" due to clarification of state controlled substance statutes.

The law needs to be clarified again, Ray said, according to a ruling by the Utah Supreme Court that a person cannot be immune from prosecution if any reasonable person would deem the product as genuine.

Under current law, possessing a counterfeit controlled substance is a felony; possession of an imitation controlled substance is a misdemeanor.

In State v. Jeffries last year, there arguably was such a representation of bits of sheetrock as crack, but the substance was not a controlled substance. The Utah Supreme Court agreed with the defense that it was an imitation controlled substance because the substance was not actually a controlled substance. The state in that case asserted that representing crushed dry wall as crack cocaine should be categorized as a counterfeit controlled substance.

During oral arguments in the case, the following exchange took place between a justice and the lawyer from the state attorney general's office:

Question: In reading the plain language of the subsection for a counterfeit substance, it would appear that if I hold up this pen and tell you it's cocaine, I've violated. Would you agree?

Answer: Yes.

Question: That's pretty ludicrous, isn't it?

Answer: Yes.

In State v. Nelson in 2007, a pesticide packaged to mimic methamphetamine to thwart thieves was not a controlled substance, but the case was prosecuted as possession of an imitation controlled substance and resulted in a conviction.

Rob Latham, Utah Association of Criminal Defense Lawyers government affairs director, sent an e-mail to House members prior to the vote saying HB225 is redundant, generally muddles more than clarifies the issue and in effect makes Utah an outlier among other states and the federal government.

A lot of things could pass as imitation under the bill, Latham said. "For example, how would 'spice' be categorized under HB225? Various combinations of herbs called 'spice' are often represented to be 'just like marijuana,' but are not controlled substances."

The legislative tactics in the past two years to further criminalize and increase sentences to appear to be "tough on crime" are also "tough on the state of Utah's budget," Latham said.

Despite the bill being deemed a no-cost measure, Latham said, "your experience should tell you that raising a penalty for the same conduct from a misdemeanor to a felony will cost the state of Utah more money."