SELLING BUNK: THE VUCSA BURN

Under the Uniform Controlled Substances Act, delivery of a controlled substance means merely the transferring of an illegal drug from one person to another, regardless of whether money or anything else of value was exchanged for the drugs. Delivery of a controlled substance covers illegal drug sales and it also includes drug transfers that don't amount to sales or transactions where there is not sufficient evidence to prove that money changed hands.

In addition to prohibitions on drug transactions that are not technically sales, there is also a prohibition on transactions involving substances that are not controlled substances and are not illegal. The Washington statute outlawing the sale of what is commonly called "bunk" is RCW 69.50.4012. Under this statute, you are guilty of delivering an uncontrolled substance in lieu of a controlled substance after you have previously negotiated or arranged to sell or otherwise transfer an actual controlled substance. This is where the drug buyer gets ripped off by the drug dealer and is known in Washington courts as a "VUCSA burn." A VUCSA burn is a class C felony in Washington.

We also have a statute making it illegal to manufacture, deliver, or possess a counterfeit controlled substance. What I have not found is a specific provision under the Uniform Controlled Substances Act that would make it illegal to deliver an empty container with no substance in it whatsoever to someone who had previously arranged with the seller to buy a controlled substance.

In State v. Anderson and in State v. Eddie, the Washington State Court of Appeals has said that the prosecutor must prove beyond a reasonable doubt that the substance that was actually delivered was not a controlled substance, but the prosecutor does not need to prove the exact identity of the uncontrolled substance. The court did not address the situation that I described above where a person delivers an empty container that contains no substance, controlled or uncontrolled.