This offense is found under Business and Professions Code 43241
and includes misrepresenting yourself as a doctor on the phone to a pharmacist or stealing a prescription pad and forging a doctor’s signature as well as altering a quantity of a drug on a valid prescription2.
Forging or altering a prescription is when you make, utter, publish, pass as genuine or attempt to pass as genuine a prescription for drugs or possess any drugs obtained by a forged prescription.
B & P Code 4324 involves prescription or veterinary drugs3. To be a prescription for purposes of this code section, it must be an order for a drug or medication that may be given by:
- A writing
- Phone call
Information on a prescription must include the following:
- Patient’s name
- Name of the drug
- Directions for use
- Date of issue
- Name, address and phone number of doctor or prescriber
- Prescriber’s signature
It is unlawful to forge someone else’s signature on a prescription. Besides medical doctors, nurse practitioners and physician’s assistants can prescribe drugs as can veterinarians. Forging their names to obtain drugs is equally unlawful.
“Altering” is changing a validly issued prescription, usually the quantity of the drug prescribed. Pharmacists become suspicious when a prescription calls for an unusually high quantity or if it allows for a high number of refills. Usually, a call to the prescriber can affirm whether the quantity or the number of refills is legitimate.
Some defendants will change the type of drug or add a drug to the prescription. An example is changing Tylenol II to Tylenol IV.
What Is “To Utter”
Uttering is a legal term with a specific meaning. You are guilty of falsely uttering a prescription when you:
- Use or attempt to use a forged drug prescription,
- And you convey or represent by words or conduct that the prescription is genuine
A violation of B & P Code 4324 is either a misdemeanor or a felony, or a wobbler. This gives the prosecutor discretion in how to charge the offense. Typically, the prosecutor will decide how to charge the offense based on the defendant’s criminal record, if any, as well as the nature of the drug or if there is evidence that the defendant intended to sell the drugs.
|Fine||A fine up to $1000||Fine up to $10,000|
|Probation||Informal probation of 3 to 5 years||Formal Probation|
|Jail||Up to 1 year in county jail||16 months, 2 or 3 years in county jail4|
It is not unusual for a court to suspend a defendant’s sentence and grant probation for 3 or 5 years for either a misdemeanor or felony conviction while requiring the defendant to successfully complete drug counseling, perform community service and submit to random drug testing. For felons, a condition of probation might also be random and warrantless searches of their car or home. Felons usually must also report periodically to a probation officer who can also order a drug test on the spot.
Any defense to a criminal charge depends on the circumstances and facts of the matter. For this offense, pertinent defenses include:
- The signature on the prescription was not yours
- You had no knowledge that the drugs in your possession were illegally obtained or are prescription drugs meant for someone else
- The prescriber erred
- The search and seizure of the prescription by law enforcement was illegal
Most searches of your person or property must be pursuant to a search warrant. There are numerous exceptions to the warrant requirement including viewing the prescription in plain view or if it was found while officers were conducting a valid search for receipts or business records.
One notable exception is a search pursuant to an arrest. Police may search you or the immediate area for weapons but since a slip of paper is unlikely to be construed as a weapon, pulling it out your pocket and using it as evidence may be challenged as exceeding the legitimate scope of the search. Exceeding the scope of a search warrant is another defense if the warrant only permitted a search of your house but officers searched your car and found the incriminating document.
In such cases, your criminal defense attorney would draft and file a motion to suppress the evidence based on illegal search and seizure.
What Our Clients Say
A friend gave me a prescription to pick up for him and I was arrested for prescription fraud. Do I have a defense?
It depends. Many times people use friends to go to pharmacies with forged or altered prescriptions. The burden of proof is on the prosecution to show that you engaged in a fraudulent activity. If none of the writing was yours or you had no knowledge that your friend had forged or altered the prescription, then it may be difficult to convict you. However, if you have been convicted of similar conduct and/or it was obvious that you should have known that what you were doing was unlawful, then you may have a more difficult defense.
I have been addicted to pain killers for a long time. Can this be a defense or can my sentence be lessened because of this fact?
If you can demonstrate addiction by medical testimony, then we may be able to convince a court to give you probation, especially if this is your first offense. If probation is granted, you will likely have to complete a drug counseling program and subject yourself to random drug testing and searches of your car, person and home. If you violate any term of your probation, you will be sent to jail.
As a doctor, can I be charged with prescription fraud for prescribing too many drugs to a patient?
If you knowingly write a prescription for a patient whom you know is an addict and the drugs are not medically appropriate or the patient has been requesting multiple prescriptions, then you may be criminally culpable. This can be a difficult charge for the prosecution to charge unless there are facts indicating you knew, for example, that the patient was selling the drugs and you were profiting from the sales. Otherwise, over-prescribing pain medications is not uncommon among physicians and it is not a crime.
You commit prescription fraud by obtaining or attempting to obtain a controlled substance by:
- Concealing a material fact
- Uttering or making false statements on a prescription
- Affixing a false label to a package containing controlled substances
Doctor shopping is fraud as well. It occurs when you use multiple pharmacies and physicians or prescribers to obtain narcotics without their knowledge.
It is a wobbler with the same potential sentences as H & S 11378.
It is unlawful to possess certain controlled substances that are not available by prescription, such as cocaine or heroin, as well as prescription drugs meant for someone else or which were obtained unlawfully. Possession is now a misdemeanor under Proposition 47. A repeat offense, however, is a felony carrying a sentence of 16 months, 2 or 2 years in county jail.
If you have any general questions please leave them in the comments below.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
- California Business and Professions Code 4324(a) – Every person who signs the name of another, or of a fictitious person, or falsely makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in a county jail for not more than one year. [↩]
- See Also 2017 Lawbook for Pharmacy [↩]
- Business & Professions Code 4025 – “Drug” means any of the following:(a) Articles recognized in the official United States Pharmacopoeia, official National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement of any of them. (b) Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humansor other animals. (c) Articles (other than food) intended to affect the structure or any function of the body of humans or other animals. (d) Articles intended for use as a component of any article specified in subdivision (a), (b), or (c [↩]
- California Penal Code 1170(h)(1) – Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years. [↩]