The dangers of using, possessing or selling controlled substances are well-known, but you also risk serious penalties if the drugs are prescription medications, many of which are controlled substances and only legally available by a prescription. It is unlawful to possess or sell prescription drugs that were not prescribed to you. It is also illegal to forge a prescription to obtain a prescription medication or for a medical provider to write one for a non-medical purpose.
- Hydrocodone with acetaminophen
- Promethazine/codeine syrup
Although you may be eligible for alternative disposition in some possession cases, you may face serious consequences if you are convicted of a drug crime involving prescription medications, especially if you are charged with possession with intent to sell or for sale of a controlled substance.
It is unlawful to possess prescription drugs without a valid prescription. Possession consists of:
- Exercising control over the drug
- Knowledge of the drug’s existence
- Knowledge that it was a controlled substance
- And that there was a sufficient quantity of the drug
Possession is also actual, constructive or joint.
You possess the drug if it is on your person or in a bag or container over which you have control such as a wallet, purse or luggage. You may also be considered in possession if you are under the influence of the drug since you possessed it at any earlier time.
You are in constructive possession of a drug if you exercised control over the area where it was found, such as your car or bedroom. Having access to the area or being near or in close proximity to the area is not necessarily constructive possession without proof you had control over it. This might include your roommate’s dresser.
More than one person can be deemed in possession of a drug if you and at least one other person both exercised control over the area where it was found. If the drugs are found in a common area like the living room of an apartment you share, then all tenants there may be considered in constructive possession of the drugs so long as the other tenant(s) had knowledge it was there.
You satisfy the element of knowledge if you knew of the drug’s existence and that it was a controlled substance. If you find and decide to take a bottle whose label indicates it is Hydrocodone or Vicodin, you had knowledge of its nature as a controlled substance. Some users may identify the drug tablet if it has certain markings on it.
Sufficient quantity means that there is enough of the drug to be used as such. If there is only a trace of it, then you cannot be considered in possession of it. It does not have to be enough for it to produce its desired effect.
Possession with intent to sell prescription medication has the same elements regarding possession:
- You exercised control over the drug
- You had knowledge of the drug’s existence
- You knew that it was a controlled substance
- And there was a sufficient quantity of the drug
There are the added elements of:
- You possessed the drug with the intent to sell or distribute it
- Or, you purchased the drug with the intent to sell it
This requires that you have sufficient quantity of the drug to sell, which is more than just a trace of it. It has to be enough so that it can be consumed. To prove intent to sell, there has to be sufficient quantity so that it at least appears you are holding this amount for more than just your own personal use. If you are arrested with several thousand pills, this could indicate intent to sell.
Sale, of course, is usually proved by the defendant selling the drug to an undercover agent or the agent observing the sale.
Intent to sell or sale of a prescription drug is a felony. If convicted, you face:
- Up to one year in county jail and probation
- Or, 2, 3 or 4 years in jail
- And/or a fine up to $20,000
Sale or transportation of prescription drugs under HS 11352 carries the following penalties:
- 3 to 9 years in jail and/or
- A fine up to $20,000
You face additional penalties if your sale was to a minor or you were transporting very large quantities.
There are two separate offenses for “doctor shopping” in California. One applies to patients who commit fraud while attempting to obtain prescription medication under H &S 11173, and the other pertains to physicians who write illegal prescriptions under H &S 11153.
Under H & S 11173, the elements of fraud in procuring a prescription drug are:
- You obtained, attempted to obtain, procured the administration or prescription of, or attempted to procure the administration or prescription of a controlled substance; and
- You committed the act either by fraud, deceit, misrepresentation or subterfuge, or by the concealment of a material fact
You may be convicted under the statute by attempting to obtain a controlled substance by any of these means. For instance, if you give false information to a physician in order to procure painkillers or you supply false identification, you may be convicted of prescription fraud. It is irrelevant if you actually obtain the drug.
Fraud is a required element, which means knowing misrepresentation of the truth or of a material fact that you convey in order to obtain the controlled substance.
Another example of using fraud to procure a controlled substance is going to various physicians to have them prescribe you a particular narcotic so that you can sell some of it to others. Even if you do experience severe pain and you received valid prescriptions, you concealed from these doctors that you were using them to obtain quantities of the drug so you could illegally sell it to other people.
Under H & S 11153, a physician commits prescription fraud under these elements:
- Knowingly issuing a prescription
- That is not for a legitimate medical purpose and/or
- That is outside the physician’s usual course of professional practice
Offenders include any medical provider who is able to legally dispense or prescribe drugs including nurse practitioners, psychiatrists, physician’s assistant, pharmacist or drug manufacturer or wholesaler.
The medical provider must have intended to write the prescription knowing that it was for a non-medical reason such as for increasing or enhancing a person’s performance in an athletic event or for academic reasons. It is also unlawful for the provider to write a prescription for a controlled substance to a patient whom the provider knows is addicted to the drug or has reason to know the person is addicted.
Health and Safety Code 11173 and 11153 are wobbler offenses, meaning that patients or medical providers convicted under these statutes face either misdemeanor or felony charges. A prosecutor will look at the scope or gravity of the offense and if the offender has prior convictions.
It is unlawful to obtain a prescription for a narcotic by forging a prescription. More specifically, this entails:
- Forging, altering, issuing or uttering an altered prescription for a narcotic substance
- Issuing or uttering a narcotic drug prescription bearing a forged or fictitious signature
- Obtaining or possessing a narcotic drug as a result of a forged, altered or fictitious prescription
Uttering refers to your use or attempt to use a forged or altered prescription and your representation through your words or conduct that the prescription is real.
Charges under H&S 11368 can be a misdemeanor or a felony. If a misdemeanor, the penalties are:
- Up to one year in county jail
- And/or a fine up to $1000
If a felony, you face:
- 16 months, 2 or 3 years in jail
- And/or formal probation
Evidence of Possession
Most drug crimes involve unlawful possession of a controlled substance. To be convicted of possession, the prosecution will need to show that the drug was on your person or that you exercised control over it or the area where the drugs were found.
As indicated above, possession can be actual, constructive or joint. Constructive means that you exercised control over the place where the drugs were located, such as a dresser drawer, automobile, boat, suitcase or closet. Joint means that more than one person had access and exercised joint or shared control such as a living room.
Evidence of Knowledge
Another important piece of evidence in a drug case is showing that the defendant had knowledge of the drug’s existence or of its nature. For instance, you can claim you had no knowledge that cocaine found in your jacket was there if you can show that someone else had worn the coat recently.
Knowledge of the drug’s nature might be proved by showing that you have had prior drug convictions for possession and/or sale of the same controlled substance or that you frequented areas with people who regularly used the drug. This would indicate you were aware of what the drug looked like or its packaging.
Evidence of Intent to Sell
Evidence of intent to sell a drug can be demonstrated by:
- 1.Drugs in your possession were found in great quantity
- 2.Scales and bags were found at your home
- 3.You had large amounts of cash on your person or in your home
- 4.You have lists of people with addresses and phone numbers who are known drug users
In your defense, you might have to retain an expert who could testify that certain users like yourself frequently kept and used large quantities of the drug for your own personal use.
Evidence of Prescription Drug Fraud
It is relatively easy to show that a patient forged or altered a prescription to acquire a controlled substance or narcotic. But many patients do have chronic pain conditions and it is not always so evident that the patient misrepresented a material fact in obtaining the drug from a physician or other medical provider.
For medical providers accused of knowingly writing a prescription for a non-legitimate medical reason, the prosecution could look at the persons for whom the drugs were prescribed to see if they had a legitimate diagnosis that the drug is used to treat. If the patient misrepresented that they had a particular diagnosis or condition, then the medical provider may not be held criminally liable.
Even being careless in prescribing the narcotic is not enough to show knowledge.
Deferred Entry of Judgment
Under California’s Proposition 1000, a first-time, non-violent drug defendant can get diversion. This means that you can get a DEJ, or deferred entry of judgment, so long as you complete drug treatment. This is for first offenders only who are charged with possession.
You enter a guilty plea under this procedure and the judge suspends further proceedings for 18-months or longer in some cases while you enter rehabilitation or take a drug education class. If you complete the program, the charges are dismissed. You can also state in most cases that you have never been arrested on a drug charge.
This program also covers forging a prescription for your personal use. To be eligible, you must show:
- No prior drug-related convictions
- No record of revocation of parole or probation for other offenses
- You did not participate in a drug diversion or DEJ program in the past 5 years
- No felony convictions in the past 5 years
- Your charged possession case did not involve violence
This is another drug diversion program but is more limited in the types of offenses it covers and is more restrictive than DEJ. You can, though, have your drug charge dismissed once you successfully complete a treatment or education program. It also only applies to first or second time, non-violent drug possession offenders and to parolees who commit a drug possession crime.
In this program, you enter a guilty plea and upon completion of an 18-month program, the charges are dismissed. Unlike DEJ, however, you are on formal probation and subject to whatever conditions and restrictions are placed on you.
Although your charges are dismissed after completion of your treatment program, a judge could still not allow you to state under oath that you were never arrested for that crime.
Drug court diversion is similar to DEJ and Proposition 36 except that you are not required to plead guilty to the charge. However, participants with prior drug or other convictions may be required to do so. If you have to plead guilty, you are placed on probation and ordered to complete a drug treatment program.
Once you complete your drug program, all charges are dismissed. This program does allow some individuals charged with possession with intent to sell to participate.
Back on Track (San Francisco)
This program is for offenders age 18-30. Defendants must go through a 6-week screening phase and complete 120-hours of community service. Upon completion, defendants plead guilty to the charge and the sentencing is postponed for one year. If no other offenses are committed and the defendant completes the program, the charges are dismissed.
If have been arrested for a prescription drug crime we can help you.
Contact the Aizman Law Firm for a free confidential consultation ay 818-351-9555.