What is Manufacturing, Selling, or Possessing with Intent to Manufacture?
Va. Code § 18.2-248 states that ” it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance. “
The totality of the circumstances will come into play for such a charge, but the code also specifically outlines as follows for ‘imitation controlled substances’:
In determining whether any person intends to manufacture, sell, give or distribute an imitation controlled substance, the court may consider, in addition to all other relevant evidence, whether any distribution or attempted distribution of such pill, capsule, tablet or substance in any other form whatsoever included an exchange of or a demand for money or other property as consideration, and, if so, whether the amount of such consideration was substantially greater than the reasonable value of such pill, capsule, tablet or substance in any other form whatsoever, considering the actual chemical composition of such pill, capsule, tablet or substance in any other form whatsoever and, where applicable, the price at which over-the-counter substances of like chemical composition sell.
What is an Imitation Controlled Substance?
An ‘Imitation Controlled Substance’ is defined, by Va. Code § 18.2-247 as:
The term “imitation controlled substance” when used in this article means (i) a counterfeit controlled substance or (ii) a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance subject to abuse, and:
1. Which by overall dosage unit appearance, including color, shape, size, marking and packaging or by representations made, would cause the likelihood that such a pill, capsule, tablet, or substance in any other form whatsoever will be mistaken for a controlled substance unless such substance was introduced into commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate; or
2. Which by express or implied representations purports to act like a controlled substance as a stimulant or depressant of the central nervous system and which is not commonly used or recognized for use in that particular formulation for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the United States Food and Drug Administration.
How is This Punished?
The punishment structure for the charge is far from straightforward, and depends on what kind of substance is involved, what amounts are involved, and other circumstances. There are a broad range of substances that are covered by this charge, and prior history is a big factor as well. Many charges under this code section will carry a mandatory minimum of 5 years in prison. Sentences can even include life imprisonment for subsequent offenses.
Fines for this charge can be a good deal higher than fines for other charges found throughout the code, in some cases up to $500,000.
An ‘escape hatch’ to avoid the mandatory minimum may require a defendant to ” truthfully provide to the Commonwealth all information and evidence the person has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.”
Should I Hire a Lawyer
Yes, absolutely. This charge is very serious, and even more complicated. A defendant has to consider exactly what they are charged with to properly understand their case, and the fines and possibility of incarceration will vary accordingly. Defending against such a charge will require significant analysis, testing, and expert witnesses.