Utah Legislature: House bill would bring felony charges for fake drugs

SALT LAKE CITY — Street drug dealers whose "junk" turns out to be, well, junk would face felony charges under a bill now on the floor of the House.

HB225, which adds an "any reasonable person" clause to state controlled substances definitions, stems from drug cases in which counterfeit substances were sold as the real deal. One state Supreme Court case involved crushed sheetrock sold as crack cocaine.

Passing off as genuine any counterfeit substance — controlled or not — be it chunks of plaster, baking soda, monosodium glutamate or baby laxative so that any reasonable person would deem it the genuine article would make dealers face bigger problems than an unhappy clientele, according to sponsor Rep. Paul Ray, R-Clearfield.

The first response in this situation within the street-drug trade culture "is for people to kill each other," Paul Boyden, an attorney speaking for state prosecutors, told members of the House Health and Human Services Committee. However, he said, "there is congestion in the courts" from dealers snagged in undercover stings claiming their product was bogus anyway, not really controlled, and therefore they should be immune to prosecution.

The Supreme Court has ruled they aren't immune if any reasonable person would believe it is the genuine article, and suggested legislators clarify the language in state law.

Other cases have involved controlled substances that just looked like the real thing, Boyden said, noting that in the 1980s, fake versions of the stimulant amphetamine popularly called "cross tops" were sold as such but were never claimed to be actual amphetamine.

Rob Latham, a spokesman for state defense attorneys, said the bill would have the unintended consequences of criminalizing a lot of people.

"If we pass this bill, we're saying that anyone who crushes something could be charged with a felony," Latham said. "If I had a packet of crushed Altoids and said it was a controlled substance of some kind, under this bill, it is a counterfeit controlled substance and I could be charged with a felony."

Rep. Brad Daw, R-Orem, said he believes the bill properly frames the problem, noting a 2007 case in which pesticide was sold as methamphetamine.

"It seems pretty obvious to me if someone is pulling these kinds of stunts, it's very dangerous, and doing so should be a felony," he said.

e-mail: jthalman@desnews.com