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North Carolina Criminal Law 90-95(a)(2): Creating a Counterfeit Controlled Substance

1. Definitions and Elements of the Crime

Under North Carolina Criminal Law Chapter 90-95(a)(2), the crime of creating a counterfeit controlled substance is defined as knowingly and intentionally either:

  1. Placing a counterfeit controlled substance in a container with labeling that is false or
  2. Intentionally misrepresenting a counterfeit controlled substance as a narcotic under the Controlled Substances Act.

To prove a charge creating a counterfeit controlled substance, the State must be able to establish the following prima facie elements Beyond a Reasonable Doubt:

  1. Defendant knowingly and intentionally
    1. describe prohibited conduct or behavior consistent with creating the controlled substance
    2. name the controlled substance
  2. Creates
  3. A Counterfeit Controlled Substance

A “controlled substance” is defined under North Carolina Criminal Law Chapter 90-87(6).

Controlled Substances - The NC drug law includes and otherwise defines two general different kinds of substances subject to prosecution under N.C.G.S. 90-95:

  1. A controlled substance labeled or otherwise marked to indicate that it is manufactured, distributed, or dispensed by someone (usually a company) other than the manufacturer, distributer or dispenser
  2. A substance intentionally represented as a controlled substance even though it is not

“Create” is not defined by statute. In general, the term create means to “bring into existence.” As such, the Finder of Fact would be charged with the duty to determine what creating a controlled substance means.

The State bears the Burden of Proof in all criminal matters and therefore must present evidence that convinces the Finder of Fact, Beyond a Reasonable Doubt, the defendant did create a controlled substance.

The Finder of Fact for felony criminal charges in North Carolina is traditionally a jury of your peers. The NC Constitution was recently amended whereby the defendant may waive the right to a jury trial, thereby allowing for a Superior Court Judge to serve as the Finder of Fact.

Traditionally the jury makes determinations of fact and judges making rulings on law. Waiver of a jury trial cannot be compelled and therefore must be voluntary.

2. Examples

Defendant goes to the grocery store and purchases oregano. Defendant places the oregano in a plastic baggie, also placing within the baggie rolling papers and a lighter. Defendant tells people the substance is marijuana. Defendant can be charged with creating a counterfeit controlled substance.

Defendant goes into his kitchen cabinet and pulls out flour and tin foil. Defendant places the flour in the tin foil and packages it in the tin foil. Defendant is arrested and found to also be in possession of a spoon, a butane lighter, and cotton balls. Defendant asserts that the substance is heroin. Laboratory testing confirms Defendant did not possess heroin or any other controlled substance. He can still be charged with creating a counterfeit controlled substance, despite possession materials that normally would be entirely legal to possess.

Defendant buys chocolates from a candy store and individually wraps each piece in aluminum foil. Defendant goes to a concert with the chocolates. Defendant asserts that the chocolates contain psilocybin (mushrooms). Defendant can be charged with creating a counterfeit controlled substance.

Substances that are normally lawful to possess may be deemed “counterfeit controlled substances,” the creation of and/or “creating a controlled substance,” depending on the facts and circumstances of the matter. Each drug charge, like each person charged with a criminal offense, is unique.

As such, an aspect of “intent” may be inferred from the nature of possession, how the Defendant came to be in possession of the substances at issue, and whether any other facts or circumstances would shed light on the purposes of possessing the materials.

The Finder of Fact would necessarily consider the manner in which the “substance” was packaged and otherwise presented.

3. Similar Offenses
  1. North Carolina Criminal Law Chapter 90-95: Possession of a Controlled Substance on Premises of a Penal Institution or Local Confinement Facility
  2. North Carolina Criminal Law 90-95: Trafficking in Marijuana
  3. North Carolina Criminal Law Chapter 90-95: Possession of a Controlled Substance With Intent to Manufacture, Sell or Deliver
  4. North Carolina Criminal Law Chapter 90-95: Possession of an Immediate Precursor Chemical
  5. North Carolina Criminal Law Chapter 90-108: Feloniously Dispensing a Controlled Substance
  6. North Carolina Criminal Law 90-108: Possession of a Controlled Substance (Felony, Misdemeanor)
  7. North Carolina Criminal Law 90-95: Drug Trafficking - Selling, Delivering, or Transporting
4. Defenses to Creating a Counterfeit Controlled Substance

The Defendant can seek to show that the substance is in fact what he asserts it to be and not a counterfeit controlled substance, a substance lawfully possessed, and/or that the substance is in the proper container labeled by the proper manufacturer, distributor or dispenser.

The accused in a criminal charge bears no burden of proof or production of evidence. As such, the defendant is not required to present evidence, take the stand on his or her own defense, or prove innocence. The defendant’s failure to testify or present a defense cannot be used as evidence of guilt at trial.

Lawful possession of a controlled substance and/or challenging creation of counterfeit controlled substance necessarily involves careful consideration of the factual basis of the charges and the associated allegations by law enforcement.

5. Penalties

The crime of creating a counterfeit controlled substance is a Class I felony punishable by up to a maximum period of incarceration of 12 to 24 months.

6. Criminal Defense for Creating a Counterfeit Controlled Substance

If you have been charged with felony creation of a counterfeit controlled substance, contact an experienced Charlotte Criminal Attorney without delay. Exercise your Right to Remain Silent (5th Amendment Right). Ask to speak with a defense lawyer before cooperating with any investigation.

Felony Drug charges are serious criminal offenses and can have long-term consequences other than a felony record.

Any sentence for creating a counterfeit controlled substance may be imposed on top of (in addition to) an active sentence or periods of incarceration you may currently be serving for other offenses.

A felony conviction can be a permanent stain on your record. For example, a felony conviction can seriously impede your ability to obtain a job, secure a loan or even attend college.

The consequences of a guilty plea can be greater than you may recognize.

Megan S. Powell and Chris J. Beddow are part North Carolina criminal defense attorney team at Powers Law Firm PA. It’s imperative to begin your defense without delay. Please call 877-462-3841 immediately.

Call NOW to schedule your complementary legal consultation with our Charlotte Criminal Defense Lawyers. Everything discussed during a consultation with our law firm is strictly confidential.

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