(A) 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. Any person who violates the provisions of this section is guilty of a misdemeanor and upon conviction shall be subject to the penalty provisions set forth in § 1-1-99 of this code of ordinances.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CONTROLLED SUBSTANCE. A substance as defined in Subsection E of Section 30-31-2 NMSA 1978.
DISTRIBUTE. The actual, constructive or attempted transfer, delivery or dispensing to another of an imitation controlled substance.
IMITATION CONTROLLED SUBSTANCE. A substance that is not a controlled substance 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:
(1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance or its use or effect;
(2) Statements made to the recipient that the substance may be resold for consideration greatly in excess of the market value of the ingredients;
(3) Whether the substance is packaged in a manner normally used for illicit controlled substances;
(4) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;
(5) 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 section; and
(6) Whether the physical appearance of the substance is substantially identical to a controlled substance.
MANUFACTURE. The production, preparation, compounding, processing, encapsulating, tableting, packaging or repackaging or labeling or relabeling of an imitation controlled substance.
(C) Defenses. 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.
(D) Immunity. No criminal liability shall be imposed by this Ordinance on any person who may lawfully manufacture or distribute controlled substances under Section 30-31-12 NMSA 1978 who manufactures, distributes, or possesses 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.
('74 Code, § 12-1-4-17) (Ord. 21-1982) Penalty, see § 12-1-99