Sec. 4.6 . (a) A person who knowingly or intentionally:
(2) finances the delivery of;
(4) finances the manufacture of;
(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.
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