Is It Illegal to Sell Fake Drugs in Nebraska? - Omaha Criminal Defense Lawyer
Criminal Law

Is It Illegal to Sell Fake Drugs in Nebraska? – Omaha Criminal Defense Lawyer

Is It Illegal to Sell Fake Drugs in Nebraska? – Omaha Criminal Defense Lawyer

prop drugs for saleIt’s common knowledge that selling drugs is against the law. However, it may come as a surprise to learn that you can get arrested for selling fake drugs.  

When it comes to Nebraska drug possession charges, the government can’t prosecute you unless the substance you have in your possession is illegal.

For example, if you bought something you thought was marijuana, but it was actually oregano, you may have gotten ripped off, but you won’t face any legal trouble.

However, the same is not true for the sale of fake or counterfeit drugs. In Nebraska, you can face a criminal charge for selling fake drugs.

Thus, in the example above, the person selling fake weed could get arrested and charged even though you would not be arrested for possessing it.

This is because Nebraska law makes it illegal to sell “counterfeit” drugs. Under Nebraska Revised Statute 28-416, it is illegal to knowingly or intentionally “create, distribute, or possess with intent to distribute a counterfeit controlled substance.”

As strange as it may seem, under the terms of the statute, selling fake drugs is treated the same way as selling real drugs. Surprisingly, selling fake drugs can actually result in additional criminal penalties under federal law.

Punishments for Selling Fake Drugs in Nebraska

State Charges


If the police arrest you for selling fake drugs, you may face both state and federal criminal charges. Under state law, the sale of counterfeit drugs is a drug crime. Thus, by offering prop drugs for sale, you actually face the same penalties as if you sold real drugs.

The penalties for selling fake drugs depend on several factors. For example, Nebraska’s selling fake drugs law takes into account the following when determining the possible sentence:

  • The type of drug you claimed to sell;
  • Whether you have any prior drug convictions on your record;
  • The amount of the fake drug in your possession;
  • Where you sold the fake drugs; and
  • Who you sold the fake drugs to.

For example, all fake drugs are not equal in the eyes of Nebraska lawmakers. If you sold fake cocaine, you could face Class IB felony charges, carrying a maximum punishment of up to 20 years in prison. However, if you sold fake weed, you may only receive a citation. 

Not surprisingly, having a prior drug conviction on your record or selling fake drugs to a minor will result in stiffer penalties. So will carrying a gun while conducting the sale or selling fake drugs within 1,000 feet of a school.

There are even enhanced punishments for selling fake drugs within 100 feet of a “public or private youth center, public swimming pool, or video arcade.”

Federal Charges

In addition to Nebraska drug charges, anyone who sells fake drugs may also face federal fraud charges. Federal law defines fraud as any intentional deception or misrepresentation used to benefit yourself. Under federal fraud laws, it is illegal to claim a substance is a drug when it is not.

If you face federal fraud charges, they will often be in addition to the state drug charges brought by Nebraska prosecutors. Federal fraud charges are extremely serious.

Federal prosecutors thoroughly investigate a case before bringing charges. Thus, those facing federal drug charges often find that they are in over their heads by the time they learn of the charges.

Defenses to Fake Drug Charges

There are defenses to both state and federal criminal charges related to fake drug sales. Perhaps the most common defense is a motion to suppress physical evidence. A motion to suppress is a pre-trial motion where your attorney argues to keep evidence out of trial.

These motions claim that the evidence the prosecution intends to use against you was obtained in violation of your constitutional rights. In most drug cases, this often involves arguing that police engaged in an illegal search or seizure.

For example, police officers need to have either a warrant or a valid reason to search you, your car, or your home. If a police officer pulls you over and immediately rips you out of the car without any justifiable basis, you may be able to keep out any fake drugs the officer recovered.

Motions to suppress can also keep certain statements you make out of evidence. For example, if a police officer arrests you but doesn’t advise you of your Miranda rights, your statements may be inadmissible.

However, search and seizure law is complex, and anyone facing fake drug charges in Nebraska should consult with a seasoned criminal defense attorney to develop the best strategy in their specific case.

Reach Out to a Dedicated Nebraska Drug Defense Lawyer 

If you were arrested and charged with state or federal fake drug crimes, contact Petersen Criminal Defense Law. Attorney Thomas M. Petersen is a veteran criminal defense attorney with more than 25 years of experience.

He defends the rights of clients in Omaha and the surrounding areas. Our firm is founded on the belief that everyone—regardless of the charges they face—is innocent until proven otherwise. At Petersen Criminal Defense Law, we take an aggressive approach to each case we handle, ensuring our clients’ rights are respected throughout the criminal trial process.

To learn more, and to schedule a free consultation with Attorney Petersen, give him a call today. You can also connect with him through the firm’s online contact form.




Tom Petersen
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