For the purpose of this subchapter, the following definitions
shall apply unless the context clearly indicates or requires a different
meaning.
A substance, as defined in NMSA, section 30-31-2E.
The transfer, delivery or dispensing to another of an imitation
controlled substance.
A substance that is not a controlled substance, but which,
by overall dosage unit, appearance, including color, shape, size and
markings, or by representations made would lead a reasonable person
to believe that the substance is a controlled substance. In those
rare cases when the appearance of the dosage unit is not reasonably
sufficient to establish that the substance is an imitation controlled
substance, for example, in the case of powder or liquid, the court
or authority concerned should consider, in addition to all other logically
relevant factors, the following factors, as related to “representations
made,” in determining whether the substance is an imitation
controlled substance:
Statements made by an owner or by anyone else in control of
the substance concerning the nature of the substance, of its use or
of its effect;
Statements made to the recipient that the substance may be resold
for consideration greatly in excess of the market value of the ingredients;
Whether the substance is packaged in a manner normally used
for illicit controlled substances;
Evasive tactics or actions utilized by the owner or person in
control of the substance to avoid detection by law enforcement authorities;
Prior convictions, if any, of the owner or anyone in control
of the object, under state or federal law, related to controlled substances
or fraud, provided that this factor alone shall not be sufficient
to support a conviction under this subchapter; and/or
Whether the physical appearance of the substance is substantially
identical to a controlled substance.
The production, preparation, compounding, processing, encapsulating,
tableting, packaging or repackaging or labeling or relabeling of an
imitation controlled substance.
(Ordinance 1982-04, adopted 7/6/82)
It is unlawful for any person to, knowingly or under circumstances
where a person reasonably should know, manufacture, distribute or
possess, with intent to distribute, an imitation controlled substance.
(Ordinance 1982-04 adopted 7/6/82 Penalty, see section 130.99)
(A)
Any person who violates the provisions of section 130.02 is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $300.00 or imprisoned for not more than 90 days, or both.
(B)
In
any prosecution for unlawful distribution or possession with intent
to distribute of an imitation controlled substance, it is no defense
that the defendant believed the imitation controlled substance to
be a controlled substance.
(C)
No criminal liability shall be imposed by sections 130.01 and 130.02 on any person who may lawfully manufacture or distribute controlled substances under NMSA, section 30-31-12, who manufactures, distributes or possess, with intent to distribute, an imitation controlled substance for use as a placebo by a registered practitioner in the course of professional practice or research.
(Ordinance 1982-04 adopted 7/6/82)
