Forging or altering a prescription is punishable under Health and Safety Code 11368. Individuals who publish, modify, make, pass, utter, or attempt to pass a false drug prescription are criminally liable. The same is true for individuals with drugs acquired through a fraudulent prescription. It is worth noting that you could face prosecution under HS 11368 even if you did not write the prescription—a misdemeanor or felony conviction for altering or forging a prescription results in criminal charges.

You can assert defenses to challenge HS 11368 violation charges. It is best to consult a criminal defense lawyer to evaluate your options. The Michele Ferroni Pasadena Criminal Attorney Law Firm is ready to assist should you face prosecution in Pasadena.

Health and Safety Code 11368

It is worth noting that prescription drugs are highly regulated. A licensed healthcare provider must prescribe them for a specific medical condition. Regulation of prescription drugs is informed by the need to protect the community from the potential prescription drugs pose to an individual’s health. Some of the devastating impacts are evident in the ongoing opioid epidemic.

According to HS 11368, it is a crime to forge or alter a prescription. This fraudulent activity involves creating a falsified or modified prescription for a controlled substance or changing the information on a legitimate prescription to get more medication based on the original prescription.

Some common examples of altering or forging a prescription include:

  • An individual creating a forged prescription pad or stealing one from a healthcare provider's office and writing a prescription for a controlled substance.
  • A person changing the medication dosage or the number of refills on a legitimate prescription to secure more medication than was initially prescribed.
  • Someone alters the name of the medication or the patient's name on a prescription to obtain a different type of controlled substance.
  • A person using another person’s prescription to get medication for oneself.

Let us look at the definition of critical issues under HS 11368.

  1. Narcotic drug

Federal law 21 U.S.C. § 802.17 and Health and Safety Code 11019 define a narcotic drug as any opioid drug, natural or synthetic, with the potential for abuse and dependence.

The Federal Controlled Substances Act (CSA) defines a narcotic drug as a drug or substance derived from opium or poppy straw. Additionally, synthetic drugs with effects similar to opium or poppy straw derivatives are deemed narcotic. Therefore, based on CSA’s definition, heroin, morphine, fentanyl, and codeine, as well as synthetic opioids like oxycodone and hydrocodone, are also deemed to be narcotic drugs.

In summary, a narcotic drug includes all drugs that pose the potential for abuse and dependence, specifically medications with a high risk of addiction and those that can cause serious harm to individuals and society.

  1. Prescription

Under Health and Safety Code 11027, a prescription is an order for medication that meets the following requirements.

  • Issued by a licensed healthcare provider — Licensed healthcare providers are the only individuals legally authorized to issue prescriptions. They include physicians, optometrists, podiatrists, dentists, and veterinarians.
  • In writing or electronically — Prescriptions can be transmitted electronically or in writing. The licensed healthcare provider should also sign the prescription.
  • Containing specific information — All prescriptions should have precise details distinct to the patient. These include the following:
  1. Patient’s name.
  2. Name and strength of the medication.
  3. Route of administration.
  4. Dosage instructions.
  5. Number of refills authorized (if any), and
  6. Name, address, and DEA number of the prescribing healthcare provider.
  • Issued for legal purposes only — Licenced healthcare practitioners should only issue prescriptions for lawful ends. If given for illegal purposes, you will have violated HS 11368. Therefore, the prescription should not be for an unlawful purpose or to enable criminal acts, including obtaining a controlled substance through fraud, forgery, or deception.
  1. Utter

Legally, “utter” is passing, offering, or attempting to pass an altered or forged document intending to commit fraud. For purposes of HS 11368, the focus document is a prescription. An individual utters a document when he/she presents an altered or forged document and presents it as genuine to deceive the prescription recipient. This reliance on a forged or altered prescription negatively impacts the recipient.

  1. Possess

Possession is fundamental in an HS 11368 case. Possession means controlling or custody over an object, device, document, or substance. Possession can be acquired directly (actual possession) or indirectly (constructive possession) through another individual where you exercise control over the document, substance, object, or device.

For altered or forged documents in your possession, the courts will find you guilty if you possess a forged or altered prescription.  

Actual Possession

Actual possession is evident when you physically hold or carry a prescription.

For example, if a police officer discovers a forged prescription in your pocket during a search, you would be said to have actual possession of the document.

Constructive Possession

Constructive possession refers to having the ability to control or access the prescription even if it is not in your physical presence. You have constructive possession if the altered document is found in your car, house, office, or another environment you control.

This possession also includes the document found on an individual who acts under your authority or is in the individual's care. 

Prosecutors prove constructive possession by showing that you knew of the prescription, intended to exercise control over it, or could control its use.

Joint Possession

On the other hand, joint possession refers to multiple people controlling the prescription or drug.

For example, two individuals could be guilty of joint possession if they were found with a forged prescription or illegal drugs obtained from a forged or altered prescription in the glove compartment of their car. Both individuals had control or custody over the drugs, even if one person physically put the drugs in the glove compartment.

Prosecutors must prove that each individual knew of the presence of the prescription or drugs. Further, the prosecution should establish that they intended to exercise control or custody over it.

Elements of the Crime of Forging or Altering a Prescription Under California Law

Prosecutors must prove the following elements beyond a reasonable doubt for a jury to convict you of an HS 11368 violation. These elements include:

  1. Using a Forged, Fabricated, Modified, or Used an Altered Prescription

If you are charged with violating California Health and Safety Code 11368, prosecutors must demonstrate that you either fabricated or modified a prescription. Alternatively, they should prove you utilized a fabricated or modified prescription field.

It should be clear to the jury that:

  • You:
  1. Forged or modified a prescription,
  2. Provided someone with a prescription with a false or forged signature or a modified prescription, or
  3. Attempted to use a modified or forged prescription to secure drugs, and
  4. The medication prescribed was a narcotic substance, and
  5. You were aware if someone else had tampered with or falsified the prescription.
  1. In Possession of Illicit Narcotics Acquired With a Falsified Prescription

The state must prove the following elements to be actual if it charges you with obtaining and possessing a narcotic through a falsified prescription:

  • You acquired or had a narcotic drug.
  • You were aware of its presence.
  • You knew that the substance was a narcotic drug.
  • The quantity of narcotic drugs was enough to be utilized by someone as a drug.
  • You obtained the drug by using a falsified, counterfeit, or altered prescription, and
  • You knew you had a fraudulently acquired drug.

Note: The law does not require that you know the name or function of the drug you had. It is only necessary that you were aware that it was a narcotic drug. Furthermore, the usable amount does not have to be large enough to get an individual high. Therefore, the dust or particles of the drugs do not meet the usable amount criteria.

  1. Knowledge Under HS 11368

Prosecutors prove your knowledge of your actions, both the handling of a forged or altered prescription or that the drugs were known narcotics, through the following avenues:

  • Your statements or confessions to law enforcement,
  • Prior criminal acts that bear a resemblance to the current charge.
  • Circumstantial evidence.
  • Statements made to third parties.

Penalties for an HS 11368 Violation

Health and Safety Code 11368 violations are wobbler offenses. Prosecutors can pursue misdemeanor or felony charges based on the prosecution’s case assessment.

If convicted of a misdemeanor violation, you could face the following punishments:

  • Up to one year in county jail or summary probation,
  • A fine of up to $1,000.

However, if a jury convicts you on felony charges, you could face the following penalties:

  • 16 months, two or three years in prison, or felony probation.
  • A maximum fine of $10,000.

Defenses You Can Assert in a Forging or Altering a Prescription Case

You can raise several defenses to challenge the allegations of altering or forging a prescription. The common defense strategies include:

  1. A Legitimate Prescription

If your prescription was legitimate, you could challenge the HS 11368 violation allegations by asserting that you had a legitimate prescription.

It is not illegal to possess or use a controlled substance. You only need to have obtained it through a valid prescription from a licensed healthcare professional. Your attorney must prove that the prescription was legitimate and that the healthcare professional who issued the prescription was licensed by the Medical Board of California (MBC).

However, it is worth noting that possession of a valid prescription does not excuse you from criminal liability if you altered the prescription in any way.

For instance, if you increase the quantity of the medication prescribed, change the dosage instructions, or forge the signature of a healthcare professional, you are criminally liable for forgery or prescription fraud.

Therefore, should you opt to use this defense, you must prove that the prescription was valid and that you did not alter or forge the prescription in any way.

  1. Lack of Knowledge that the Drugs in Your Possession Were Obtained From a Forged or Altered Prescription

In some cases, defendants use altered or forged prescriptions. However, most do not know of their falsified or modified nature. Prosecutors must prove beyond a reasonable doubt that you knew or should have known that the prescription was fraudulent. They must show that you knew of the inconsistencies or altered information on the prescription. To counter this assertion, your attorney will show the jury that you were unaware or could not have known the prescription was forged or altered by presenting the following evidence:  

  • Lack of access to the prescription — This defense applies if you did not have access to the prescription or were not involved in obtaining it. It is easy to deduce that you did not know it was fraudulent.
  • Reliance on others — In cases where you relied on another person, for example, a healthcare provider or pharmacist, to provide you with the prescription, you have no reason to suspect that the prescription was fraudulent.
  • Lack of knowledge about prescriptions — Most people do not have knowledge or experience with prescriptions. So it is unreasonable to expect them to differentiate a fraudulent from a legitimate prescription.
  • Incomplete prescription — If the prescription was missing critical information, like the prescribing physician's name or the dosage, you could assert that you were unaware of the missing details or you did not know it was fraudulent to use such a prescription.

If the defense is successful, the courts will acquit you of all charges. It is also possible for you to face less harsh charges if acquittal is not possible.

  1. You Were Unaware that the Prescription Was Altered or Forged

Asserting that you were unaware that the prescription in your possession was forged or altered is based on the principle of "knowledge" or "mens rea." This principle requires the prosecution to prove that the accused knew or intended to commit the crime.

You must demonstrate that you did not know or suspect the prescription was forged or altered.

For example, if you obtained the prescription from a trusted healthcare provider or received it from a friend or family member who you believed had a legitimate medical need for the medication, You could argue that you had no reason to believe the prescription was altered.

Another way to support this defense is to show that the prescription was professionally done and appeared authentic. You could provide a pharmacist’s testimony or that of other medical professionals. Their testimonies should support the argument that the prescription looked legitimate and could have fooled someone who did not have specialized knowledge.

However, this defense is not absolute. You must show that you had no knowledge or suspicion that the prescription was forged or altered. If there is evidence that you knew or should have known of the fraudulent state of the prescription, this defense will not be successful. Additionally, you could be liable for other crimes even if you did not know that the prescription was forged or altered. These include attempting to obtain a controlled substance through fraud or deception.

  1. You Possessed a Forged Prescription But Did Not Use It

In some cases, officers could find you possessing a forged or altered prescription. However, since you did not use it, there is no evidence of your attempt to defraud another individual. Therefore, you can challenge the case against you by acknowledging that you had the prescription but denying the intention or attempt to use it to obtain a narcotic drug.

You can introduce witness testimony, documentation of your actions leading up to the discovery of the forged prescription, or other evidence that shows you did not attempt to use the prescription to obtain drugs. All these are potential evidence you can use when raising this defense. 

In some cases, possessing a forged prescription is sufficient to warrant a criminal charge, regardless of whether you attempted to use it to obtain drugs. However, if you can successfully argue that you did not intend to use the prescription, this approach could reduce the severity of the charges. You could avoid a conviction altogether.

  1. You Lacked Knowledge You Possess the Drugs

Under this defense, you will assert that you were unaware that the drugs were in your possession, whether actively, jointly, or constructively. This can be difficult to prove, as the prosecution could argue that you knew about the drugs due to your proximity or the circumstances in which they were found.

However, there are several ways that you can attempt to establish this defense. These include:

  • Lack of physical possession — You could argue that you did not physically possess the drugs. Therefore you did not know they were there. For example, if officers found the drugs in a car or room you were in but did not possess, you can argue that you did not know about them.
  • Lack of knowledge of the substance — You could also assert that you did not know the drug or that it was illegal. This defense is more effective if the drug is not in plain view or you have no history of drug use or criminal activity.
  • Coerced possession — Arguing that you were forced or coerced into possessing the drugs by someone else is a third option.
  1. Officers Obtained The Drugs During an Unlawful Search

Law enforcement officers violate your Fourth Amendment rights when they illegally search you, your premises, or your vehicle. Therefore, any evidence obtained through an illegal search and seizure is inadmissible. Your attorney will file a motion to suppress because of violating your Fourth Amendment rights.

Under this motion, defense attorneys could point to several illegalities reinforcing the need to suppress the evidence. Some of the notable issues include:

  • Police officers searching without a warrant or your consent,
  • Law enforcement officers obtaining a warrant based on false or misleading information,
  • Police officers exceeding the scope of the warrant.

If the evidence is compelling, the judge will suppress the evidence. The prosecution will likely drop the charges.

The Federal Controlled Substances Act – 21 USC 843

The Federal Controlled Substances Act (CSA) regulates controlled substances' manufacture, distribution, and use. More specifically, 21 USC 843(a)(3) makes it a crime for anyone to gain or acquire controlled substances through fraud, deception, misrepresentation, subterfuge, or forgery.

The majority of prescription forgery or alliteration is handled at the state level. However, federal prosecutors pursue these cases if they meet the following threshold:

  • The defendant is a doctor who wrote a significantly large number of false prescriptions.
  • The case involves drug traffickers who acquired a significant number of drugs from forged or change prescriptions.

Federal law, 21 USC 843, is a felony. If the courts convict you of a first offense, you will likely face the following penalties:

  • Up to 4 years in federal prison.

For subsequent violations, you will face the following penalties:

  • Up to eight years in federal prison and
  • A fine of up to $250,000.

Immigration Consequences

A conviction for altering or forging a prescription can result in immigration consequences. Drug-related crimes are deemed deportable offenses.

Under federal immigration law, a non-citizen convicted of a drug-related crime, including forging or altering a prescription for a controlled substance, could result in your deportation and being marked as inadmissible. Thus, you will be denied re-entry into the country.

Related Offense

Doctor Shopping/Prescription Fraud — HS 11173  

HS 11173 prohibits doctor shopping and prescription fraud. Doctor shopping involves obtaining multiple prescriptions from multiple doctors. On the other hand, prescription fraud entails obtaining a prescription through misrepresentation or deception.

The penalties for violating this statute can be severe, including criminal and civil penalties.

Prosecutors can pursue misdemeanor or felony charges for violations of this statute. Misdemeanor convictions carry the following penalties:

  • Up to one year in jail and/or
  • A maximum fine of $1,000.

On the other hand, felony convictions result in the following penalties:

  • 16 months, 2 or 3 years in jail, and/or
  • A maximum fine of $10,000.

Contact a Pasadena Criminal Defense Attorney Near Me

You must contact a criminal defense lawyer immediately if you face criminal charges for forging or altering a prescription. The attorney will evaluate your case and advise you on the best action. The Michele Ferroni Pasadena Criminal Attorney Law Firm  is ready to assist if you face charges in Pasadena. For more information, please contact our team at 626-628-0564