Counterfeit Controlled Substance

Florida Statute Section 831.31 prohibits selling, manufacturing, delivering, or possessing with intent to sell, manufacture, or deliver, a counterfeit controlled substance. The term “counterfeit controlled substance” is defined as either: 

• Any substance which is falsely identified as a controlled substance named or described in s. 893.03; or
• A controlled substance named or described in s. 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance. 

The crime is charged as a third degree felony if the controlled substance named or described is listed in s. 893.03(1), (2), (3), or (4). The crime is charged as a misdemeanor of the second degree if the controlled substance named or described in s. 893.03(5).

Related offenses include Section 817.564 which defines imitation controlled substances and prohibits the possession and distribution of imitation controlled substances.

Attorney for Counterfeit Controlled Substance Crimes in Florida

If you were arrested for possession of a counterfeit controlled substance with intent to sell, a violation of section 831.31(a), Florida Statutes, then contact an experienced criminal defense attorney at Sammis Law Firm.

We also represent clients accused of possession or distribution of an imitation controlled substance under Florida Statute Section 817.564.

Contact us to find out more about the criminal charge pending against you for possessing fake or counterfeit drugs, the potential penalties, and possible defenses to fight the charges.

Our main office is located in downtown Tampa, FL. We also have offices in Clearwater in Pinellas County and New Port Richey in Pasco County, FL.

Call 813-250-0500.

Substance Must Either be Labeled or Identified as a Controlled Substance

In Graham v. State, 4th District. Case No. 4D21-1763. May 11, 2022. Appeal from the Circuit Court for the Nineteenth Judicial Circuit (47 Fla. L. Weekly D1064a), the court considered whether Section 831.31 required that the counterfeit substance either be labeled or identified as a controlled substance. 

The court found that “[a]lthough the issue of labelling was not directly raised in the motion for judgment of acquittal, we conclude that the failure to prove the charged offense was fundamental error. Id. (citations committed). 

In the Graham case, the court found:

Section 831.31, Florida Statutes (2020), addresses “[c]ounterfeit controlled substance; sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver[.]” See State v. Hayes, 446 So. 2d 1185, 1186 (Fla. 4th DCA 1984) (analyzing prior version of the statute).

The statute is directed at “the problem of the distribution of counterfeit controlled substances, i.e., substances that may be identified as one thing but are really another.” Id.

….Thus, for the State to prove a violation of section 831.31(1)(a), the State must present evidence either of some labelling, which contains some identifying mark, number, or likeness of a trademark of a manufacturer other than the person who in fact manufactured the product. Alternatively, the State must prove that the substance is falsely identified as a controlled substance listed in section 893.03.

In J.L.F. v. State, 887 So. 2d 432, 434 (Fla. 5th DCA 2004), the court found:

Clearly, this statute requires that a defendant either place the substance in a container with a false label that identifies the substance as a controlled substance, falsely label the substance itself, or falsely identify the substance to another. Id.

Other cases addressing the issue include Damen v. State, 793 So. 2d 106, 109 (Fla. 2d DCA 2001), in which the court concluded: “[p]ackaging the items to look like crack cocaine did not constitute the necessary false identification of the substance.”

In Durr v. State, 583 So. 2d 424 (Fla. 1st DCA 1991), the court held that the defendant’s possession of a clear plastic bag containing twelve rocks of what appeared to be cocaine, but was not, did not support a conviction for possession of a counterfeit substance with intent to distribute.

In Adderly v. State, 571 So. 2d 557 (Fla. 1st DCA 1990), the court found that placing fake crack cocaine in a nondescript, unmarked and unlabeled plastic bag was not sufficient to establish the act of mislabeling under section 831.31.

Additional Resources

Use or Possession of Drug Paraphernalia – Read more about criminal charges for the use or possession of drug paraphernalia in violation of section 893.147(1), Florida Statutes.

This article was last updated on Monday, May 9, 2022.