Virginia Code § 18.2-247(B) makes it a crime to distribute an imitation controlled substance. Specifically, § 18.2-247(B)(ii) makes it unlawful to sell any "pill, capsule, tablet, or substance of any form whatsoever which is not a controlled substance subject to abuse." Recently, the Virginia Supreme Court ruled in Powell v. Commonwealth, 766 S.E.2d 736 (2015) (full text) that a defendant's distribution of quetiapine (an antibiotic drug) could give rise to a conviction under § 18.2-247(B) if it is packaged to look like cocaine and sold as such.
In Powell, the defendant sold a hard, white, rock-like substance to an undercover police officer in Lynchburg, Virginia after being asked by the officer for "a four," slang for $40.00 worth of cocaine. The substance looked to the naked eye like cocaine and was packaged in a knotted baggie. At trial, the forensic scientist testified that the substance was not cocaine, but quetiapine. The trial court convicted the defendant of distribution of a schedule I or II drug, a felony.
The defendant appealed the case to the Virginia Supreme Court. The majority focused on the wording "subject to abuse" in § 18.2-247(B)(ii). It noted that quetiapine is a Schedule VI controlled substance, subject to the definitions in the Drug Control Act (§ 54.1-3400, et seq.). When determining whether a drug is classified in Schedules I-V, the Drug Control Act requires an analysis on "the actual or relative potential for abuse." § 54.1-3443(A)(1). The Act makes no mention whether the potential for abuse factors are included for classification in Schedule VI. Therefore, the Court holds that quetiapine is not "subject to abuse" and can be an imitation controlled substance under § 18.2-247(B). The Defendant's conviction for distribution of imitation drugs was affirmed.
Criminal attorneys looking to challenge a crime based on statutory construction should probably read this case a few times. Both the construction of § 18.2-247 and the Drug Control Act are at issue in both the majority and dissent. Criminal attorneys looking to advise clients should tell them not to sell cocaine, fake or real.