Fake Drug Dealers Selling Fake Drugs: Committing Real Crime?

Let’s examine an extremely hypothetical situation.*  We’ll call our subject “Antoine.”  Antoine is from Kentucky and he has simple tastes.  He likes science and Metallica.  Antoine also likes to party.  So one day Antoine takes his buddy Pete to New York City for a big Metallica concert at Yankee Stadium.  They get off the big metal bird, and stare up at all the pretty lights, mouths agape.  “New York!” they exclaimed, “We’re finally here!”

Pete and Antoine walk around the streets of the big city, saying hello to all the locals.  For some reason, the locals aren’t quite as talkative.  Mostly they just scowl at Pete and Antoine as the Kentucky boys walk past, grinning.  The boys from the Bluegrass walk along, trying to find a watering hole that isn’t too expensive.  After settling in at a little dive bar and having a couple of $24 bourbons, a conversation takes place similar to the following:

Antoine:  Hey, man.  I like to party.  Let’s get some party supplies.  By that, I mean “drugs.”

Pete:  Say no to drugs, Antoine.  How many times have I told you that?

Antoine:  Don’t be a nerd, man!  Let’s smoke some drugs.

So Pete reluctantly agrees to walk with Antoine as Antoine searches for drugs.  Antoine figures the quickest way to acquire the contraband is to walk up to guys who stand on street corners, and ask “Hey, friend – do you have any drugs?  I have a bunch of money, and I sure would love to buy some drugs.”

“How much money you got, hillbilly?”  A helpful New York native inquires.  “A hundred dollars.”  Antoine replies.  “Well ain’t that a monkey’s uncle,” the New Yorker exclaimed, “I’m having a sale today.  I’ll give you two bags of drugs for exactly $100.  That way it’s like you get a free bag of green with that yay.”  Nearly instantly, the helpful New York native alleviates Tony, I mean Antoine, of his money.   Quickly and stealthily, Antoine walks away with his two bags.

Back at the little dive bar, Antoine slips into a bathroom stall to inspect the merchandise.  He fumbles with the baggies inside baggies and can barely contain his excitement. It’s almost like Christmas morning.  Inside that bathroom stall in the little dive bar in New York City, Antoine feels the disappointment of a hundred lifetimes as he discovers that his “drugs” consist of one (1) baggie of shredded green paper and one (1) baggie of fresh baby powder.

The question for today is:  In Kentucky, is it illegal to sell someone fake drugs?

KRS 218A.350 govern prohibited practices concerning substances that simulate controlled substances and the penalties associated therewith.  It states, in pertinent parts:

(1) No person shall sell or transfer any substance, other than a controlled substance, with the representation or upon creation of an impression that the substance which is sold or transferred is a controlled substance.

(4) No person shall manufacture, package, repackage, advertise, or mark any substance, which is not a controlled substance, in such a manner as to resemble a controlled substance, for the purpose of creating the impression that the substance is a controlled substance.

(5) For the purpose of determining whether this section has been violated, the court or other authority shall include in its consideration the following:

            (a) Whether the noncontrolled substance was packaged in a manner normally used    for the illegal sale of controlled substances;

            (b) Whether the sale or attempted sale included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable value of the   noncontrolled substance.

(7) Any person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.

Let’s assume the above scenario took place on the streets of Louisville, and not New York.  For the purposes of this conversation, assume the rest of the facts stay the same.  Antoine will be happy to know that the Not Really Drug dealer violated subsection (1) of KRS 218A.350.  By explicitly stating that the substances being sold were “drugs,” the Not Really Drug dealer represented that the substances were controlled substances.  By virtue of doing so, he committed a Class A misdemeanor, assuming this was a first offense.

Let’s change the fact pattern.  And for the purposes of this conversation, let’s assume that drug dealers and Not Really Drug dealers and purchasers don’t like to speak in explicit terms when negotiating a transaction.  Assume that Antoine was simply walking by, and the Not Really Drug dealer whispered, “you need that stuff?”  Antoine wanted to purchase some drugs, and although no explicit representation of controlled substances was made, Antoine held out $100.  Not Really Drug dealer gave Antoine the little, individually packaged baggies, and walked away.  Assuming that the baggies contained the same legal substances as above, did Not Really Drug dealer break the law? 

In this situation, Not Really Drug dealer didn’t violate subsection (1).  However, he most likely violated subsection (4), and certainly violated the balancing test under subsection (5).  A court or jury would consider the fact that the legal substances were packaged in a manner that is popularly used for packaging controlled substances.  Further, the amount of money Antoine paid Not Really Drug dealer is certainly exorbitant for a purchase of green shredded paper and baby powder.

Either way, Not Really Drug dealer has committed a crime.  He should speak to a Louisville drug charge lawyer immediately for a free consultation.

If you have been charged with a trafficking in a controlled substance in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 and speak with an experienced Louisville drug charge lawyer at Gruner & Simms, PLLC.  The initial consultation is free.

Gruner & Simms, PLLC.

Results.  As fast as the law will allow.

*This is a purely hypothetical scenario - all names in this story are purely fictional.  Any resemblance to actual people or actual happenings or actual science fairies are purely coincidental and should be ignored.