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Zoey, JD
Zoey, JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
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Experience:  18 yrs of NYS criminal defense. Extensive arraignment, hearing, trial experience.
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Is a student who jokes with friends that he has alcohol in

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Is a student (while at school) who jokes with friends that he has alcohol in his drink (but doesn't) and offers (not for sale) it to one friend, winking to go along with the joke, in violation of California Code 48900 (d) Unlawfully offered, arranged, or negotiated to sell a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind, and either sold, delivered, or otherwise furnished to a person another liquid, substance, or material and represented the liquid, substance, or material as a controlled substance, alcoholic beverage, or intoxicant.

Submitted: 6 months ago.
Category: Criminal Law
Expert:  Zoey, JD replied 6 months ago.
Hello,

My name is XXXXX XXXXX X am a criminal lawyer.

I assume that you are asking if the student can be lawfully charged with this offense. The answer is yes.

The student doesn't have to accept money for this to come under the statute. The transfer could just be "delivered or otherwise furnished," which are also prohibited.
Additionally, by telling his friends that the drink contains alcohol, even with a wink (winks don't always mean, "I'm kidding") he has "represented the liquid, substance, or material as a controlled substance, alcoholic beverage, or intoxicant."

Now whether the DA will want to try this case and attempt to prove it beyond a reasonable doubt is a different matter. I'd hope that the case would be dismissed. Technically speaking, however, what the student did makes out the elements of this crime.
Customer: replied 6 months ago.

The code says "Unlawfully offered, arranged, or negotiated to sell". Does this mean "offering to sell, arranged to sell, or negotiated to sell"?

 

It also reads to me that there are two conditions that need to be met. One being the arrangement to sell *and* the next being the delivery or otherwise furnished.

 

Don't both conditions need to be met?

 

I've read the other parts of 48900 and other sections seem to be explicit about furnishing vs arranging to sell which makes me think that this section (d) requires both conditions.

 

 

Expert:  Zoey, JD replied 6 months ago.
Hi,

I see your point, and it is certainly something you can argue. Nevertheless, money need not be exchanged to have a valid sale, as there are other types of consideration. In drug sales, as well, it's the exchange of the contraband that's unlawful, whether or not the recipient pays for it.

Like I said, I would hope the state would dismiss this. It's certainly not worth a lot of effort to prosecute it. But can they charge it? Well, they have done! Yes, they can.
Customer: replied 6 months ago.

I'm almost done.


 


You wrote technically this makes out the elements.


 


Technically, are "offered, arranged or negotiated" written to be interpreted as going with "to sell" or do the words "offered" and "arranged" stand on their own?


 


For example, does this meaning of the legal language mean "unlawfully arranged an intoxicant" or "unlawfully arranged to sell an intoxicant"?

Expert:  Zoey, JD replied 6 months ago.
Hi,

Legal writing is precise. These are words in a series, connected by "or," so the statute covers when you have arranged to sell, offered to sell or negotiated to sell a controlled substance or an alcoholic beverage or an intoxicant.

Zoey, JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15176
Experience: 18 yrs of NYS criminal defense. Extensive arraignment, hearing, trial experience.
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