Distributing Counterfeit Substances

In Massachusetts, it is a crime to distribute a counterfeit controlled substance. This offense is governed by Massachusetts General Laws Chapter 94C Section 32G.

To convict a defendant of distributing a counterfeit substance, the district attorney has to prove beyond a reasonable doubt that:

  1. The defendant distributed, possessed with the intent to distribute, created or dispensed an item;
  2. That item was a counterfeit controlled substance. This means that the substance did not actually contain illegal narcotics but was a fake version that appeared or was passed off as such; and
  3. The defendant acted knowingly or intentionally. Knowledge or intent cannot usually be proven by direct evidence, so it is usually established by inferences drawn from the facts and circumstances of the case. Such inferences need only be reasonable. They do not need to be necessary.

A defendant can be convicted of distributing a counterfeit substance under a theory of joint venture. This means that he may be convicted if the district attorney proves that he was present during the particular sale, actually participated in the sale or was willing and available to participate in the sale if necessary, and had the requisite knowledge or intent (or knew that another person intended to commit the crime).

If you are charged with distributing a counterfeit substance, you face imprisonment in a jail for up to one year or a fine of at least $250 and up to $2,500, or both the jail time and the fine. Because there is no possibility of receiving a sentence to state prison for this offense, it is considered a misdemeanor.

Although the punishment for distributing a counterfeit substance might not seem serious at first glance, it is certainly not taken lightly by prosecutors. Where any drug violations are involved, Massachusetts district attorney's offices have zero tolerance, and jail time is a true possibility.

There are a myriad of circumstances in which a person can find himself or herself charged with this type of crime. For example, the police may have conducted an investigation that resulted in the execution of a search warrant. Depending on the circumstances, anyone who is present when the warrant is issued, anyone with any connection to the home or apartment, and the target of the warrant are often charged with a crime. If the controlled substance that the police believed that they were looking for turns out to be fake, the defendant is often charged with the illegal possession of a controlled substance.

What Types Of Defenses Can Be Asserted With These Types Of Cases?

If you have been charged with a crime as the result of the execution of a search warrant, an experienced criminal lawyer will always examine the affidavit filed in support of the warrant to ensure that the clerk magistrate had “probable cause” to issue the warrant. The next step is to examine the warrant to ensure that the warrant was executed at the appropriate time and in the proper manner. For example, if the warrant did NOT authorize that “every person present” be searched, then any evidence collected as a result of an illegal search of a person merely present should be suppressed. Similarly, if the warrant was not executed at the proper time, there may also be grounds to file a motion to suppress evidence.

Another viable defense is simply that the defendant either did not know what the co-defendant was up to in the cases of a joint venture prosecution. Also, depending on the circumstances the defense could be misidentification or that the incident simply did not happen.

If you or someone you know has been charged with this crime, it is essential that you contact a skilled defense attorney like Kathleen M. McCarthy as soon as possible. Attorney McCarthy will work aggressively to diminish your chances of having this on your criminal record. Not only is McCarthy one of the best defense attorneys in Massachusetts, but she is also a former prosecutor. As such, she has the advantage of knowing how cases are likely to be approached by the other side. Call the Law Offices of Kathleen M. McCarthy at (978) 975 8060 or contact her online today. She will immediately begin to fight for you.