Under California Health and Safety Code section 11153(a), a doctor can be criminally punished for Prescription Fraud. The law states:
(a) A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.
A doctor commits a crime under this law IF:
- A doctor issues a prescription not in the usual course of professional treatment or in legitimate and authorized research; OR
- A doctor issues a prescription for an addict or habitual user of controlled substances, not in the course of professional treatment or as part of an authorized narcotic treatment program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use.
NOTE: This charge can be categorized as a misdemeanor or a felony. A felony charge under this Section carries all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to:
- Lose right to possess firearm
- Lose right to vote
- Lose right to sit on a jury
- Lose right to hold public office
- Must provide law enforcement with DNA sample,
- Immigration consequences, as a drug abuser, if you are a noncitizen.
- Any kind of Doctor
- Any Licensed medical professional who can prescribe medicine (i.e., Registered Nurse, Physician’s Assistant, etc.)
- Any Wholesaler or Manufacturer, or agent or employee of such
- Any Pharmacist for filling the prescription
Under Health & Safety Code section 11173, a patient can be criminally punished for “doctor shopping”. The law states:
(a) No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact.
NOTE: This charge can be categorized as a misdemeanor or a felony. A felony charge under this Section carries all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to: Lose right to possess firearm, lose right to vote, lose right to sit on a jury, lose right to hold public office, must provide law enforcement with DNA sample, immigration consequences, as a drug abuser, if you are a noncitizen.
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- Any patient who attempts to obtain and/or obtains prescription of a controlled substance through fraud
- Any medical professional who makes a false statement in any prescription, order, report, or record
- Anyone who falsely assumes the title of, or represents himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant, or other authorized person
- Anyone who affixes any false or forged label to a package or receptacle containing controlled substances
The Prescription Was Issued And/ Or Filled in GOOD FAITH: Under Health & Safety Code § 11153, it specifically provides a requirement that the person charged must “knowingly violate” the law. Under Health & Safety Code § 11210, a physician is allowed to “prescribe, furnish, or administer controlled substances” where he or she “in good faith” believes the disease, ailment, injury…requires such treatment.”
What is “Good Faith” under the law? Good faith is “that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.” It is “the opposite of fraud and bad faith.”
If, your attorney is able to convince the jury that you acted in good faith when issuing and/or filling the prescription. You have met your burden of proof to raise a reasonable doubt of guilt of violating section 11153.
Example: Addy visits Dr. Good for a routine checkup. Addy has been recently purchasing Codeine from a drug dealer on Venice Beach, but does not tell her doctor that. Instead, at her appointment, Addy complains of constant coughing for the last few weeks, wheezing, and insomnia. Addy coughs throughout the appointment, causing Dr. Good to check her breathing and ask her other related questions. While evaluating Addy, Dr. Good also notices in Addy’s chart that she had bronchitis just a few months ago. As a result, Dr. Good writes Addy a prescription for Promethazine with Codeine. Addy fills the prescription. Following, both Dr. Good and the pharmacist are charged with a violation under Health & Safety Code Section 11153. Addy is charged with a violation under Health & Safety Code Section 11173.
DEFENSE FOR DOCTOR: GOOD FAITH: Health and Safety Code section 11210 EXEMPTS a physician acting in good faith from criminal liability under the provisions of section 11153. It is a complete defense. Therefore, if a physician BELIEVED that he or she was acting under their duties and responsibilities as a medical professional at the time of issuing or filling the prescription, they will not be in violation under this law.
NO DEFENSE FOR PATIENT: Under these facts, Addy, the patient, would likely be guilty of a violation under Health & Safety Code § 11173 for concealing the material fact that she had been procuring Codeine from a drug dealer, and for obtaining the prescription through deceit.
- You were a victim of ENTRAPMENT by law enforcement officials.
Entrapment: The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”
- There is INSUFFICIENT EVIDENCE against you.
Lack of Evidence: A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under Health & Safety Code § 11153 and/or § 11173. This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.
- Misdemeanor or Felony Conviction
- Up to 1 year in jail or 3 years in prison
- 1-5 year(s) summary probation
- Up to $20,000 in fines
- Community Service, an amount as determined by the court
Administrative Penalties for the medical professional, including but not limited to:
- Department of Consumer Affairs fines & penalties
- Medical Board under Business & Professions Code Section 802.1—Mandatory reporting required if charge of felony, or conviction of felony, or misdemeanor
- Possible Consequences: Revocation, Suspension, Citation, Public or Private Reprovals, Letter of Reprimand, Probation with terms and conditions
NOTE: If you are a medical professional, and have been charged or convicted under Health & Safety Code § 11153, and would like additional information on how this can affect your license or ability to practice, visit: http://www.mbc.ca.gov/About_Us/Laws/laws_guide.pdf
Charges under Health & Safety Code § 11153 and/or 11173 are typically:
- NOT eligible for an Deferred Entry of Judgment sentence, or
- NOT eligible for Proposition 36 sentences, and
- IS NOT a strikeable offense.
- IS considered a “crime of moral turpitude” for immigration purposes
Crime of Moral Turpitude: This includes crimes which are considered to be objectively morally inexcusable, which includes both misdemeanor and felony offenses. Any offense which is “shocking to the conscious” of the average person can bar a noncitizen from utilizing many different forms of immigration benefits. If you are convicted of a crime that is automatically considered a crime of moral turpitude, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under 11153 and/or 11173 depending on the circumstances, IS considered a crime of moral turpitude, as crimes of fraud or deceit involve moral turpitude, where willfulness is an element.
- MAY be considered an “aggravated felony” for immigration purposes
Aggravated Felony: This is a predetermined category of crimes that, include both misdemeanor and felony offenses, which can bar a noncitizen from utilizing many different forms of immigration benefits. If you are convicted of a crime that is automatically considered an aggravated felony, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under 11153(a) and/or 11173(a), depending on the circumstances, MAY be considered an aggravated felony.
NOTE: For a full review of offenses categorized as “aggravated felonies,” “crimes of moral turpitude: and other bars from relief from removal proceedings under immigration law, visit: http://www.ilrc.org/files/documents/ilrc-ca_chart__notes-2013-03_05.pdf.
The State of California has serious penalties for both H&S Code 11153 and 11173. If you have been charged with either of these crimes contact the Aizman Law Firm at 818-351-9555 for a free consultation.