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Law Provides Real Consequences for Acts Involving Counterfeit Controlled Substances

Ohio law prohibits the possession, manufacture, sale, and advertising of counterfeit controlled substances. Although the substance may be counterfeit, the penalties for violating this law are real.

Q: What is a counterfeit controlled substance?
A:
 A controlled substance is generally any one of a number of drugs or substances (such as narcotics, stimulants, depressants, hallucinogens and marijuana) that are either illegal or strictly regulated. A counterfeit controlled substance is any substance other than a controlled substance that a reasonable person would believe to be a controlled substance because of its similarity in shape, size, and color, or its markings, labeling, packaging, distribution or the price for which it is sold or offered for sale.

Q: What does the law say about counterfeit controlled substances?
A: 
The law prohibits various acts related to counterfeit controlled substances, including making, selling, or offering to sell counterfeit controlled substances.

Q:  What does it mean to “possess” a counterfeit controlled substance?
A:
  Possession can be either actual, physical possession or “constructive” possession. For example, if you are pulled over and a counterfeit controlled substance is found in your pocket, you are in actual possession of the substance. If, however, you are pulled over, a counterfeit controlled substance is found under the driver’s seat of your car, and there are no passengers in the car, you may be in “constructive possession” of the substance. Constructive possession exists if you are aware of the presence of the substance and you are able to choose and control whether or not it is near you. 

Q: Might I be found in constructive possession if I’m just a passenger in the car, and the driver has the substance in her pocket?
A:
 In such a case, you probably would not be considered to have control of the substance. Similarly, you probably would not be found in constructive possession if you are a guest in someone’s house and the substance is in the resident’s bedroom (even if you are aware it is there).

Q: The law seems vague; is it constitutional?
A:
 Yes. Appellate courts have found that the law is not vague, since it gives a reasonable person fair notice of what conduct is prohibited.

Q: Can I go to jail for violating this law?
A:
 Yes. For possessing counterfeit controlled substances, you could go to jail for up to six months. For making, selling, or advertising a counterfeit controlled substance, you could go to prison for up to one year, and if you make, sell or advertise the substance within the vicinity of a juvenile or a school, you could go to prison for up to 18 months. 

Q: Can a conviction affect my driver’s license?
A:
 Yes. In addition to the other penalties described above, a person convicted of violating this law will have his or her driver’s license suspended for at least six months and up to five years.

Q: I have a professional license.  Can my professional license be affected if I’m convicted of violating this law?
A:
 Yes. If you have a professional license (if, for example, you are a doctor, a lawyer, a pharmacist, a teacher, etc.), and you are convicted of violating this law, the court must transmit a certified copy of the conviction to the licensing board or agency that has the authority to suspend or revoke your professional license.

11/15/2013

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus-area attorney Shawn Dominy.​​

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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