Supreme Court says selling an "imitation controlled substance" is misdemeanor, not felony

The Nevada Supreme Court has ruled selling undercover agents an imitation controlled substance is a misdemeanor, not a felony.

The case involved Charles Edward Washington, who was arrested after selling what he claimed was cocaine to agents. It wasn't even a drug, so they arrested him on charges of selling an imitation substance.

Washington's lawyers challenged the felony charge, saying the 1991 Legislature changed that law to a misdemeanor. The district judge agreed that no one would know whether they were committing a felony or a misdemeanor but upheld the Washoe County district attorney's right to charge the crime as a felony.

The Supreme Court panel of Justices Miriam Shearing, Deborah Agosti and Bob Rose disagreed, pointing out that the two statutes overlap substantially, "both in form and application and cover identical conduct."

"In essence, the only true differences between NRS453.323 and 453.332 is the penalty," the opinion states.

And, they said, since the misdemeanor version was the last one approved by the 1995 Legislature, it effectively repeals the felony version.

The high court sent the case back to Washoe County for sentencing as a misdemeanor.