Offense
Manufacture, sell, deliver, hold, or offer for sale any misbranded drug or device1A “device” is an instrument, apparatus, machine, implant, in vitro reagent, or contrivance, including its components, byproducts, or accessories, used in the diagnosis or treatment of a human or other animal or “[t]o affect the structure or any function of the body of a human or any other animal.” B&P 4023. “[D]evice” does not include contact lenses or prosthetic or orthopedic device not requiring prescription. Id. A “drug” is defined at H&S C 11014 to include more substances than those included under the federal Controlled Substance Act, and thus is overbroad as compared to a “controlled substance.”
Aggravated Felony (AF)
Not an AF
Crime Involving Moral Turpitude (CIMT)
Should not be a CIMT because it appears to be a regulatory offense, but there is no case precedent.
Other Removal Grounds
Should not be CS offense, as the term “drug” is overbroad and indivisible.
Advice and Comments
This might not be divisible between drug and device, and the term “drug” is not divisible. Still, while this is not legally necessary, best practice is to plead to “device” and sanitize all documents in the record of reference to a federal CS.
Consider defenses at 11377 before pleading to this offense.