As used in the Imitation Controlled Substances Act:

A. "board" means the board of pharmacy;

B. "controlled substance" means a substance as defined in Subsection E of Section 30-31-2 NMSA 1978;

C. "distribute" means the sale or possession with the intent to sell of an imitation controlled substance;

D. "imitation controlled substance" means a substance that is not a controlled substance which by dosage unit appearance, including color, shape, size and markings and by representations made would lead a reasonable person to believe that the substance is a controlled substance. The fact finder may consider:

(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 inordinate profit;

(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; and

(6) whether the physical appearance of the substance is substantially identical to a controlled substance; and

E. "manufacture" means the production, preparation, compounding, processing, encapsulating, packaging or repackaging or labeling or relabeling as an imitation controlled substance.

History: Laws 1983, ch. 148, § 2.

Admissibility of prior convictions under Section 31-31A-2(D)(5) NMSA 1978. — Any evidence of a prior conviction referred to in Section 31-31A-2(D)(5) NMSA 1978 must also be admissible under Rules 11-403 and 11-404(B) NMRA. State v. Serna, 2013-NMSC-033.

Admission of prior convictions under Section 31-31A-2(D)(5) NMSA 1978 was error. — Where defendant was charged with trafficking imitation controlled substances for selling baking soda as cocaine; pursuant to Section 31-31A-2(D)(5) NMSA 1978, the district court allowed testimony about defendant's prior criminal convictions for possession of a controlled substance and credit card fraud; and the evidence of defendant's prior convictions went solely to propensity, painting defendant as a bad character from the drug world, the convictions were inadmissible. State v. Serna, 2013-NMSC-033.