State v. Hill

HALL, Chief Justice

(dissenting):

I do not share the view of the Court that the deception engaged in by the defendant in violation of U.C.A., 1953, § 76-6-405¹ also constituted a violation of the Utah Imitation Controlled Substances Act.²

The defendant unequivocally represented the baking soda as being “good” cocaine. He made no representation whatsoever that the baking soda was an “imitation controlled substance” as defined by statute.³ Indeed, baking soda has none of the properties of cocaine and only resembles it in general appearance.

Utah’s Imitation Controlled Substances Act is patterned closely after the Model Imitation Controlled Substances Act drafted by the Drug Enforcement Administration (DEA), United States Department of Justice.⁴ The Prefatory Note to the Model Act⁵ states the reasons it was felt necessary to draft legislation dealing with lookalike drugs. In sum, the clear thrust of the Act is to reach dealers who sell tablets, capsules, powders and liquids that “closely resemble or even duplicate the appearance of well-known, brand name controlled substances, but which contain only non-controlled over-the-counter drugs such as caffeine, ephedrine, phenylpropanolamine, acetaminophen, or some combination of these substances.”⁶ These look-alikes are being advertised and widely circulated, particularly among the school age population as “the ‘safe’ legal way to get high.”⁷ This contributes to the growing drug problems in our schools by fostering acceptability of drug ingestion, which, in turn, often leads to experimentation with controlled drugs or to tragic accidents when the real thing is ingested by mistake.

Thus, the clear intention of the Act is to deal with manufacturers, distributors and users of drugs that are not claimed to be the real thing but that look like the real thing and have a like effect. Certainly, baking soda does not fit that category, nor is there any indication that the DEA intended to reach persons who were selling non-drug substances, such as baking soda, representing them as controlled substances, such as cocaine. Similarly, there is no indication that the Utah Legislature intended the Imitation Controlled Substances Act to apply other than to the conduct discussed by the DEA.

I view the Imitation Controlled Substances Act as not having any application to defendant’s conduct, and I would therefore affirm his conviction of theft by deception.

OAKS, J., concurs in the dissenting opinion of HALL, C.J.

1 . That theft by deception is a legitimate charge, see, e.g., Pritchard v. State, Alaska App., 673 P.2d 291 (1983); Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978).

2 . U.C.A., 1953, § 58-37b-1, et seq.

3 . U.C.A., 1953, § 58-37b-2(4).

4 . A number of other states have adopted some form of the Model Act. See, e.g., Alaska Stat. § 11.73.010, et seq. (Supp.1983); Ariz.Rev.Stat. Ann. § 13-3451-1 (Supp.1983); Colo.Rev.Stat. § 18-5-601 (Supp.1983). However, to date no court has interpreted the progeny of the Model Act and only one court has mentioned it in passing. McCrary v. State, Ala.Cr.App., 429 So.2d 1121 (1982).

5 .October, 1981, p. 2a.

6 . Id.

7 . Id.