An Act concerning imitation controlled dangerous substances and amending N.J.S.2C:35-11.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:35-11 is amended to read as follows:

2C:35-11. Imitation controlled dangerous substances; distribution, possession, manufacture, etc.; penalties.

a. It is unlawful for any person to distribute or to possess or have under his control with intent to distribute any substance which is not a controlled dangerous substance or controlled substance analog:

(1) Upon the express or implied representation to the recipient that the substance is a controlled dangerous substance or controlled substance analog; or

(2) Upon the express or implied representation to the recipient that the substance is of such nature, appearance or effect that the recipient will be able to distribute or use the substance as a controlled dangerous substance or controlled substance analog; or

(3) Under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance or controlled substance analog.

Any of the following shall constitute prima facie evidence of such circumstances:

(a) The substance was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances or controlled substance analogs.

(b) The distribution or attempted distribution of the substance was accompanied by an exchange of or demand for money or other thing as consideration for the substance, and the value of the consideration exceeded the reasonable value of the substance.

(c) The physical appearance of the substance is substantially the same as that of a specific controlled dangerous substance or controlled substance analog.

b. It is unlawful for any person to manufacture, compound, encapsulate, package or imprint any substance which is not a controlled dangerous substance, controlled substance analog or any combination of such substances, other than a prescription drug, with the purpose that it resemble or duplicate the physical appearance of the finished form, package, label or imprint of a controlled dangerous substance or controlled substance analog.

c. (1) In any prosecution under this section, it shall not be a defense that the defendant mistakenly believed a substance to be a controlled dangerous substance or controlled substance analog.

(2) In any prosecution under subsection a. of this section, the prosecutor shall not be required to:

(a) demonstrate that the substance was submitted to, or analyzed by, a forensic laboratory pursuant to N.J.S.2C:35-19 or submitted to, or analyzed by, any other laboratory, or

(b) provide any other evidence of the composition, quality, or quantity of the substance.

d. A violation of this section is a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$200,000.00] $200,000 may be imposed.

e. The provisions of this section shall not be applicable to (1) practitioners or agents, servants and employees of practitioners dispensing or administering noncontrolled substances to patients on behalf of practitioners in the normal course of their business or professional practice; and (2) persons who manufacture, process, package, distribute or sell noncontrolled substances to practitioners for use as placebos in the normal course of their business, professional practice or research or for use in Federal Food and Drug Administration investigational new drug trials.

(cf: P.L.1997, c.181, s.7)

2. This act shall take effect on the 90^th day following enactment.

STATEMENT

This bill would eliminate the requirement for a forensic laboratory analysis of a substance in cases where the defendant is charged with distributing, or possessing with intent to distribute, an imitation controlled dangerous substance (imitation CDS).

The statute concerning imitation CDS, N.J.S.2C:35-11, makes it a crime of the third degree to distribute, or to possess or have under one's control with intent to distribute, any substance which is not a CDS or CDS analog:

(1) Upon the express or implied representation to the recipient that the substance is a CDS or CDS analog; or

(3) Under circumstances which would lead a reasonable person to believe that the substance is a CDS or CDS analog.

The statute further provides that any of the following shall constitute prima facie evidence of the circumstances set out in paragraph (3):

(a) The substance was packaged in a manner normally used for the unlawful distribution of CDS or CDS analogs,

Under the provisions of N.J.S.2C:35-19, a State forensic laboratory provides evidence of the composition, quality, and quantity of substances submitted for analysis by law enforcement officers, and this evidence is used in court in prosecutions. However, in situations where the defendant is charged with distributing, or possessing with intent to distribute, a large number of pills of unknown composition which appear to be prescription legend drugs, the laboratory analysis can be expensive and time consuming. In appropriate instances, the prosecutor may prefer to charge the defendant with the third degree crime of distribution of imitation CDS (rather than with distribution of actual CDS). The penalties for distribution of actual CDS vary depending on the substance and the quantity, ranging from a crime of the fourth degree to a crime of the first degree.

This bill is intended to allow for prosecutions for distribution, or possession with intent to distribute, imitation CDS, without establishing that the substance is not a CDS. The bill specifies that in a case where a defendant is charged with distributing imitation CDS, there would be no requirement that the substance be analyzed by a lab to determine its composition.