Sec. 4.6. (a) A person who knowingly or
intentionally:
(1) delivers;
(2) finances the delivery of;
(3) manufactures;
(4) finances the manufacture of;
(5) advertises;
(6) distributes; or
(7) possesses with intent to deliver, finance the delivery of,
manufacture, finance the manufacture of, advertise, or distribute;
a substance represented to be a controlled substance commits a Level
6 felony. However, the offense is a Level 5 felony if the person has a
prior unrelated conviction under this chapter.
(b) A person may be convicted of an offense under subsection (a)(7)
only if:
(1) there is evidence in addition to the weight of the substance
that the person intended to deliver, finance the delivery of,
manufacture, finance the manufacture of, advertise, or distribute
the substance; or
(2) the amount of the substance involved is at least twenty-eight
(28) grams.
(c) A person who knowingly or intentionally possesses a substance
represented to be a controlled substance commits a Class C
misdemeanor. However, the offense is a Class A misdemeanor if the
person has a previous conviction under this chapter.
(d) In any prosecution brought under this section it is not a defense
that the person believed the substance actually was a controlled
substance.
(e) This section does not apply to the following:
(1) The manufacture, financing the manufacture of, processing,
packaging, distribution, or sale of noncontrolled substances to
licensed medical practitioners for use as placebos in professional
practice or research.
(2) Persons acting in the course and legitimate scope of their
employment as law enforcement officers.
(3) The retention of production samples of noncontrolled
substances produced before September 1, 1986, where such
samples are required by federal law.
(f) For purposes of this section, a substance represented to be a
controlled substance includes any substance, other than a controlled
substance or a drug for which a prescription is required under federal
or state law, that:
(1) is expressly or impliedly represented to be a controlled
substance;
(2) is distributed under circumstances that would lead a
reasonable person to believe that the substance is a controlled
substance; or
(3) by overall dosage unit appearance, including shape, color,
size, markings or lack of markings, taste, consistency, or any other
identifying physical characteristic of the substance, would lead a
reasonable person to believe the substance is a controlled
substance.
(g) In determining whether the representations described in
subsection (f)(1) have been made, or whether the circumstances of
distribution exist as described in subsection (f)(2), the trier of fact may
consider the following:
(1) The overall appearance of a dosage unit of the substance,
including its shape, color, size, markings or lack of markings,
taste, consistency, and any other identifying physical
characteristics.
(2) How the substance is packaged for sale or distribution,
including the shape, color, size, markings or lack of markings, and
any other identifying physical characteristics of the packaging.
(3) Any statement made by the owner or person in control of the
substance concerning the substance's nature, use, or effect.
(4) Any statement made to the buyer or recipient of the substance
suggesting or implying that the substance is a controlled
substance.
(5) Any statement made to the buyer or recipient of the substance
suggesting or implying that the substance may be resold for profit.
(6) The overall circumstances under which the substance is
distributed, including whether:
(A) the distribution included an exchange of, or demand for,
money or other property as consideration; and
(B) the amount of the consideration was substantially greater
than the reasonable retail market value of the substance.
(7) Any other relevant factors.
As added by P.L.210-1986, SEC.2. Amended by P.L.165-1990,
SEC.8; P.L.150-1999, SEC.1; P.L.225-2003, SEC.3; P.L.158-2013,
SEC.629; P.L.168-2014, SEC.96; P.L.44-2016, SEC.7; P.L.80-2019,
SEC.27.
Notes of Decisions
Cited in
16
cases (
2 in the last 5 years), 1993–2026 · leading case:
Conner v. State, 626 N.E.2d 803 (Ind. 1993).
Conner v. State, 626 N.E.2d 803 (Ind. 1993).
· cites it 8× “Nevertheless, in light of the lesser penalties which attach to marijuana offenses, relative to other controlled substances, we conclude that the application of § 35-48-4-4.6 to Conner violates the constitutional requirement that all penalties be in proportion to the nature of…”
Tiplick v. State, 25 N.E.3d 190 (Ind. Ct. App. 2015).
· cites it 4× “Ind.Code § 35-48-4-4.6(a) (dealing in a lookalike substance); Ind.”
M.Q.M. v. State, 840 N.E.2d 441 (Ind. Ct. App. 2006).
· cites it 4× “Indiana Code Section 35-48-4-4.6(b) defines that offense as follows: "A person who knowingly or intentionally possesses a substance described in section 4.”
Brown v. State, 856 N.E.2d 739 (Ind. Ct. App. 2006).
· cites it 3× “Ind.Code Ann. § 35-48-4-4.6 (West Supp.1998).”
Townsend v. State, 673 N.E.2d 503 (Ind. Ct. App. 1996).
· cites it 2× “Townsend argues that his conviction for distributing a substance represented to be a controlled substance, a class C felony, pursuant to Ind.Code § 35-48-4-4.6(a)(4) (“section 4.”
Powell v. State, 644 N.E.2d 855 (Ind. 1994).
“Ind.Code 35-48-4-4.6 (1993). 4 . Ind.Code 35-50-2-8 (West Supp.”
Conner v. State, 613 N.E.2d 484 (Ind. Ct. App. 1993).
“to be free from cruel and unusual punishment guaranteed by the eighth amendment of the United States Constitution and Article 1, Section 16 of the Indiana State Constitution? Conner's conviction should be reversed because the trial judge intentionally misstated the law in his…”
MQM v. State, 840 N.E.2d 441 (Ind. Ct. App. 2006).
· cites it 4× “Indiana Code Section 35-48-4-4.6(b) defines that offense as follows: "A person who knowingly or intentionally possesses a substance described in section 4.”
D.G. v. State of Indiana (mem. dec.) (Ind. Ct. App. 2018).
· cites it 4× “Following a hearing on June 15, 2017, the juvenile court entered a true finding on June 22, 2017 and on July 20, 2017, sentenced her to a term of probation.”
Kenneth H. Palmer, III v. State of Indiana (mem. dec.) (Ind. Ct. App. 2020).
· cites it 2× “Palmer argued that the trial Court of Appeals of Indiana | Memorandum Decision 19A-CR-2227 | October 30, 2020 Page 13 of 23 court should enter judgment of conviction and sentence Palmer as a Class C misdemeanor because under a different statute, INDIANA CODE § 35-48-4-4.6, a…”
Michael D. Johnson v. State of Indiana (Ind. 2020).
· cites it 2× “The State later charged Johnson with “dealing in a look-a-like-substance,” a Level 5 felony under Indiana Code section 35-48-4-4.6. After unsuccessfully moving to suppress the admission of any evidence flowing from the search, a jury convicted Johnson of the charge, and he…”
Ind. Code § 35-48-4-4.6(a): 3 cases
Tiplick v. State, 25 N.E.3d 190 (Ind. Ct. App. 2015).
“Ind.Code § 35-48-4-4.6(a) (dealing in a lookalike substance); Ind.”
Conner v. State, 613 N.E.2d 484 (Ind. Ct. App. 1993).
“to be free from cruel and unusual punishment guaranteed by the eighth amendment of the United States Constitution and Article 1, Section 16 of the Indiana State Constitution? Conner's conviction should be reversed because the trial judge intentionally misstated the law in his…”
D.G. v. State of Indiana (mem. dec.) (Ind. Ct. App. 2018).
“Following a hearing on June 15, 2017, the juvenile court entered a true finding on June 22, 2017 and on July 20, 2017, sentenced her to a term of probation.”
Ind. Code § 35-48-4-4.6(a)(4): 2 cases
Townsend v. State, 673 N.E.2d 503 (Ind. Ct. App. 1996).
“Townsend argues that his conviction for distributing a substance represented to be a controlled substance, a class C felony, pursuant to Ind.Code § 35-48-4-4.6(a)(4) (“section 4.”
D.G. v. State of Indiana (mem. dec.) (Ind. Ct. App. 2018).
“Following a hearing on June 15, 2017, the juvenile court entered a true finding on June 22, 2017 and on July 20, 2017, sentenced her to a term of probation.”
Ind. Code § 35-48-4-4.6(a)(5): 1 case
Ind. Code § 35-48-4-4.6(a)(l): 1 case
Tiplick v. State, 25 N.E.3d 190 (Ind. Ct. App. 2015).
“Ind.Code § 35-48-4-4.6(a) (dealing in a lookalike substance); Ind.”
Ind. Code § 35-48-4-4.6(b): 2 cases
M.Q.M. v. State, 840 N.E.2d 441 (Ind. Ct. App. 2006).
“Indiana Code Section 35-48-4-4.6(b) defines that offense as follows: "A person who knowingly or intentionally possesses a substance described in section 4.”
MQM v. State, 840 N.E.2d 441 (Ind. Ct. App. 2006).
“Indiana Code Section 35-48-4-4.6(b) defines that offense as follows: "A person who knowingly or intentionally possesses a substance described in section 4.”
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