In a prosecution for possession with intent to distribute a controlled substance, the fact that the “drugs” in question were fake drugs will not be a complete defense. Misrepresentation of a controlled substance is a Class D felony. So, this carries a mandatory minimum of 1 year in jail. Also, it carries a maximum of 5 years in jail, and up to a $5000 fine. In addition, the statute defining this offense imposes punishment on any person who knowingly delivers or attempts to deliver a non-controlled substance upon the express representation that such substance constitutes a controlled substance, or under circumstances which would lead a reasonable person to believe that such substance constitutes a controlled substance.
Conn. Gen. Stat. §21a-268 defines the offense:
Conn. Gen. Stat. § 21a-268. Misrepresentation of Substance as Controlled Substance
(a) Any person who knowingly delivers or attempts to deliver a noncontrolled substance (1) upon the express representation that such substance contains a controlled substance or (2) under circumstances which would lead a reasonable person to believe that such substance contains a controlled substance, shall face a class D felony.
(b) The provisions of subsection (a) of this section shall not apply to any transaction in the ordinary course of business by any licensed practitioner or licensed pharmacist.
Also, this statute contains two elements that the state must prove beyond a reasonable doubt to obtain a conviction:
Misrepresentation of Substance as Controlled Substance – Elements
The defendant knowingly delivered or attempted to deliver a non-controlled substance.
The defendant represented through his words or conduct that the substance consisted of a particular controlled substance.
The first element is that the defendant knowingly delivered or attempted to deliver a non-controlled substance. A non-controlled substance is one that does not fall within the definition of a controlled substance. Also, the state must prove that the defendant knew that the substance in question did not contain a controlled substance. A person acts “knowingly” with respect to conduct or to a circumstance described by a statute defining an offense when he knows that his conduct is of such nature or that such circumstance exists. In addition, “deliver or delivery” means the actual, constructive or attempted transfer from one person to another of such substance, whether or not there agency exists in the relationship. But, attempt has its ordinary meaning.
The second element is that the defendant represented through her words or conduct that the substance was a controlled substance. So, in other words, the delivery or attempted delivery of the non-controlled substance acted upon the express representation that such substance was a specific controlled substance; or under circumstances which would lead a reasonable person to believe that such substance consisted of a specific controlled substance.
SECTION CITED FROM: CT Criminal Jury Instructions 8.1-12