Forging Or Altering A Prescription

The law allows authorized doctors and physicians to prescribe medication for various ailments. Most medications available at pharmacies require a prescription. Prescription drug addiction and abuse have recently become a major problem. Because you need a prescription to acquire the drugs lawfully, many individuals opt to forge or alter prescriptions to acquire the drugs unlawfully. Fortunately, strict rules governing the prescription of drugs exist to curb drug abuse and addiction. However, forging or altering a prescription is a serious crime under California Health and Safety Code (HS) 11368 with severe consequences.

If you have been accused of prescription fraud, you should consult an experienced white-collar crimes attorney because a conviction can be life-altering.

At CCLG: Los Angeles Criminal Attorney, we understand the laws governing crime and can guide you through your criminal case for a fair verdict. Here is the legal definition of HS 11368, along with its elements, penalties, defenses, and related offenses, to help you understand your charges.

Legal Definition of Forging or Altering a Prescription

Per HS 11368, it is unlawful to:

• Forge, modify, utter, or issue an altered prescription for a narcotic
• Issue or utter a narcotics drug prescription with a fictitious signature
• Possess or acquire narcotics using a forged, fictitious, or modified prescription

The law was enacted to ensure that only legitimate patients in need of drugs receive them and that prescription drugs do not find themselves in the wrong hands, where they could be easily abused or harmed. An HS 11368 violation can be charged as a misdemeanor or a felony, depending on the facts of the case. When convicted of a misdemeanor, you will face no more than six months of incarceration or at most $1,000 in court fines. Conversely, a felony conviction attracts no more than 16, 24, or 36 months of confinement or felony probation.

Examples of the violation include:

• Contacting a pharmacy pretending to be a physician to order a Fentanyl prescription
• Stealing your doctor’s prescription pad and prescribing Vicodin for yourself, and then forging your doctor’s signature.
• Modifying your doctor’s prescription by adding a zero on the last digit to obtain more narcotics than prescribed.

Here is the definition of some of these terms to help you understand the offenses:

Narcotic Drugs

A narcotic drug, per HS 11019, includes opiates, cocaine, coca leaf derivatives, and other specific drugs commonly abused. Drugs that fall under this category include, but are not limited to:

• Opium
• Morphine
• Cocaine
• Fentanyl
• Demerol
• Heroin
• Codeine

These drugs are highly addictive, and the ease of access to these drugs, especially stimulants, opioids, and benzodiazepines, through fake prescriptions has increased the risk of abuse. So, HS 11368 exists to curb prescription misuse.

Prescription Definition

As per HS 11027, a prescription is an electronic, oral, or written order for controlled drugs or medications, signed by a licensed healthcare provider, for the patient or the furnisher (a pharmacy). The order includes the patient’s details, drug name, issue date, use instructions, the prescriber’s signature, the drug’s quantity, and the prescriber’s name and contact information.

Definition of Utter

You utter a prescription when you obtain drugs or attempt to obtain drugs while representing a modified or forged prescription, and you claim through words or behavior that the prescription is genuine.

For instance, your physician prescribes antibiotics for a bacterial infection and painkillers to relieve the discomfort. However, without permission from your physician, you write an additional prescription for OxyContin. When you present the prescription to the pharmacist, they notice that the prescription is excessive for the pain you seek to manage. The handwriting for the OxyContin differs from that of the other medications. When the pharmacist notices the problem, you shrug off their question or claim that your doctor made the prescription. Your implication through words or conduct that the prescription is genuine, whereas it is fake, is what is called “utter.”

“Possession” Definition

Drug possession is classified as actual or constructive. Actual possession happens when the illegally acquired prescriptions are on your person, in your physical possession, or in a location you can immediately or easily access them. Conversely, constructive possession means you have control or a right to the drugs even though they are not in your immediate reach. The drugs could be in your car, house, or office. Also, controlling the drugs through another person amounts to constructive possession. Agreeing to purchase drugs alone does not give you control or possession. You, or a party acting under your instructions, must have physical control or exercise the right to control the controlled substance.

Elements of an HS 11368 Violation

To prove you forged a prescription, the prosecutor must establish the following elements beyond a reasonable doubt:

1. You Forged, Modified, or Utilized a Forged Prescription

When you face an HS 11368 violation charge, the prosecutor must prove beyond a reasonable doubt that:

• You forged or modified a prescription
• Gave another party a modified prescription or one with a falsified signature, or
• Used or attempted to use a forged prescription to obtain drugs

Additionally, the prosecutor should establish that the alleged fake prescription was for a narcotic. You do not need to be the person who made the forgery. If another party forged or modified the prescription, but you knew about it, you will still be guilty of an HS 11368 violation.

2. You were in Possession of the Unlawfully Acquired Narcotics

Another crucial element of the case that the prosecutor must prove is that you possess a drug obtained using a fake prescription. When proving this element, the prosecutor must ascertain the following jury instructions:

• You possessed or acquired the controlled substances
• You were aware of the substance’s presence
• You were aware of the nature or character of the drug as a narcotic
• The amount of narcotics in your possession was usable
• You utilized a forged prescription to acquire the drugs
• You were aware that the narcotics were acquired using a forged prescription

“Usable amounts” means the quantity of the drug was enough to ingest, even though it was not necessarily sufficient to make you intoxicated. Whether you know the name of the drug or its purpose is irrelevant to the case. Knowing the substance is a narcotic alone is sufficient to prove possession.

3. You Knew the Prescription was Fictitious or Modified

A crucial element of the crime that the prosecutor must prove is that you knew the prescription was fake when you used or tried to utilize it. The evidence the prosecutor needs to prove knowledge includes:

• Your confession or admission to law enforcement regarding the nature of the drugs
• Statements from witnesses
• Proof of previous crimes of the same nature
• Circumstantial evidence

For instance, a friend sells you prescription drugs, but you are aware that the drugs were obtained using a fake prescription. After the arrest, you confessed that the drugs were purchased from Canada, but you assumed they were over-the-counter drugs and did not require a prescription.

Upon reviewing your criminal background, the police discover you have a prior conviction for a related offense. Under these circumstances, the prosecutor will use your prior drug offense record as proof that you knew the drugs in your possession were prescription and that you obtained them illegally.

Forged Prescriptions Under the Federal Statutes

Apart from HS 11368, you can face charges for forging a prescription under federal statutes. You can even face charges under both the California and federal statutes for the same violation. Under the Federal Controlled Substances Act, 21 USC 843, it is unlawful to acquire a controlled substance by subterfuge, deception, forgery, or fraud. However, not every defendant faces charges under federal law. You face federal law charges if you are a pharmacist or a doctor who has forged prescriptions or trafficked large quantities of drugs obtained through a forged prescription.

A charge for a forged prescription under federal statutes is a felony. Upon conviction, you will serve a federal prison sentence of no more than 48 months, while a subsequent conviction attracts a maximum of 8 years of federal prison and no more than $250,000 in court fines.

Legal Penalties for Forging or Modifying a Prescription

An HS 11368 violation is a wobbler offense, allowing the prosecutor to charge it as a felony or a misdemeanor, depending on the facts and the case’s criminal history. A criminal record is an aggravating factor and can result in a more serious charge and severe penalties upon conviction. Other factors the court will consider when determining your charge include:

• The strength of the prosecutor’s case
• The age of the defendant
• The severity of your baseline offense
• Whether you cooperated with law enforcement
• Whether you are eligible for probation

Sometimes the prosecutor will pressure you into a plea bargain by charging you with a felony. If you are in this position, you should consult an experienced white-collar crimes defense attorney to protect your rights and negotiate a favorable plea deal. A seasoned attorney will convince the prosecutor to lower your felony charge to a misdemeanor so that you can face a lesser punishment in case you are convicted. Additionally, after completing your misdemeanor sentence, you can request a record expungement, which is not possible when you are charged with a felony. To qualify for a felony record expungement, you must first reduce the charge to a misdemeanor before filing.

A misdemeanor conviction is punishable by:

• Six to twelve months of jail incarceration
• No more than $1,000 in court monetary fines

A guilty verdict for a felony, on the other hand, attracts the following penalties:

• No more than 36 months of state imprisonment
• A monetary court fine of $10,000

Alternative Sentencing

Alternative sentencing options exist for HS 11368 violations, with the most prevalent being probation and drug diversion programs. An experienced white-collar crime attorney understands that several alternative sentencing options for this crime can help you avoid legal penalties, such as incarceration. However, you must request the court to grant the alternative sentencing and convince them that sentencing you to one will be in the interest of justice.

If you have a drug addiction or abuse problem, your attorney can convince the court that sending you to a drug treatment program will benefit you more than sending you to jail. If the court grants your request, it will suspend your case and enroll you in the program for a given duration. Once you complete the program as required, the court will drop the charges. However, when you engage in a violation of the drug diversion, the court will cancel the program, and you will continue with the trial.

Prior to 2018, before entering a drug diversion program, you had to plead guilty to the underlying charge, and the judge would enter a deferred entry judgment, meaning your sentence would be postponed. If you violate the drug diversion terms, the court will reinstate the deferred judgment. However, after the amendments, you can qualify for drug diversion without entering a guilty plea, such that when the program is revoked, you can resume the trial and not end up in confinement immediately.

Another alternative sentence for an HS 11368 violation conviction is probation, which is imposed in place of jail incarceration. The probationary term lasts 36 to 60 months and comes with strict conditions that you must adhere to or risk program revocation. If you are eligible for probation and the court grants it, the court suspends your jail or prison sentence and imposes probationary conditions you must adhere to throughout the program. These conditions include:

• Enrolling in a court-approved drug or alcohol treatment program
• Paying court fines
• Participating in community labor or ours
• Warrantless property searches
• Mandatory random drug testing
• Avoiding crime during the duration of the program
• Regular meeting with your probation officer

Probation is classified as formal or informal. The court imposes formal or felony probation when you are charged with a felony. Conversely, the judge grants informal or summary probation when you are convicted of a misdemeanor charge. The conditions for informal probation are less stringent than those of formal probation. If you qualify for probation, you will avoid confinement entirely or serve part of your sentence before release. That way, you can continue with your daily life but under restrictions.

Immigration Consequences of Narcotics Drug Offenses

An arrest and subsequent conviction for an HS 11368 violation can carry severe immigration consequences depending on your immigration status. If you are an illegal alien, an arrest or guilty verdict can trigger a deportation proceeding or make you inadmissible if you are out of the country.

Legal Defenses for Forging or Altering a Prescription

There are several viable defenses for an HS 11368 violation, depending on the facts of your case. After evaluating your case and the prosecutor’s evidence, your criminal defense attorney can discuss with you some of the viable defense strategies you can apply in your case for a charge reduction or case dismissal. The legal defenses include:

Your prescription was Legal or Legitimate

Your defense attorney can assert that the prescription you presented was legal. If the prescription was written and signed by a qualified medical provider, then you are not guilty of forging a prescription. So, your attorney can argue that you were falsely accused of an HS 11368 violation and present a letter from the prescriber to support your claim. The court deems a prescription as legal if it is written and signed by a licensed medical provider. If you demonstrate that you obtained the prescription lawfully, the court will dismiss the case.

Apart from a letter from the prescriber confirming you prescribed the medication, you can support the argument by saying you were wrongly accused because of a mistake made by the drug furnisher during filing or a miscommunication between the doctor and the pharmacist. A mistake or miscommunication by either party can make a prescription look forged, but this is not a crime. It is a misunderstanding that can be clarified by the prescribing doctor or drug furnisher admitting in court that they made a mistake.

You were Unaware that the Prescription was Modified or Forged

The prosecutor proves you are guilty of an HS 11368 violation if they can show you knew the prescription was altered or forged. Having a forged prescription alone does not make you guilty of the crime. Therefore, it is a valid defense to argue that you did not know the prescription was a forgery. Many times, the prosecutor uses circumstantial evidence to prove knowledge, creating room for you to challenge the defense. You can claim that a third party, such as a pharmacist, doctor, or friend, modified the original prescription without your knowledge, and you presented it believing it was genuine.

For instance, your roommate sustains a sports injury and visits the doctor for a painkiller prescription. After returning from the doctor’s office, your roommate alters the original prescription to include more drugs than initially provided and then sends you to the pharmacy with the prescription to purchase the drugs. Unfortunately, the pharmacist notices the prescription has been altered and reports you to the authorities, resulting in an arrest and charges. Under these circumstances, your defense attorney can argue that you were unaware of the forgery.

Moreover, you can claim you were ignorant of some of the alterations made to the prescription by the pharmacist, meaning you were unaware of the changes and therefore not criminally liable for the offense.

You Never Knew the Prescription Drugs in your Possession were Obtained Using a Forged Prescription

An HS 11368 violation happens when you are found in possession of prescription drugs or narcotics without a valid prescription. If you are in this position, you can claim that you never knew the prescription used to acquire the drugs in your possession was forged. For instance, you sustain a minor sports injury and experience superficial pain that does not require you to go to the hospital. You mention the pain to a friend, who then furnishes you with pain relievers they claim remained after a doctor prescribed them for a similar injury. You pay for the drugs and start using them, unaware that your friend forged a prescription to obtain the drugs. Under these circumstances, you were unaware that the drugs in your possession were unlawfully obtained, meaning you are not guilty of the charges.

You had an Altered Prescription, but did not Use or Attempt to Use It

Under HS 11368, you must present or attempt to present the altered prescription for you to face charges. So, if you did not use or attempt to use the forged prescription in your possession, you are not guilty. However, you could still face a lesser charge for forging a prescription even if you did not use it.

The Drugs were Discovered in an Illegal Search and Seizure

California search and seizure statutes protect you from unreasonable intrusion by law enforcement into your property, vehicle, or physical person. If you have been a victim of an illegal search, you can request the court to exclude or make inadmissible the evidence obtained through the unlawful search. If the authorities lack a valid search warrant, any evidence they obtain regarding your violation is inadmissible in court. Your attorney will file a motion to suppress evidence, and if it is granted, all unlawfully obtained evidence will be excluded, leaving the prosecutor with a weak case. Because the chances of winning the trial are minimal, the prosecutor could drop the charges or offer a favorable plea deal. Alternatively, the court could dismiss the case for insufficient evidence if the majority of the evidence was obtained unlawfully.

Offenses Related to Forging a Prescription

Several crimes can be charged alongside or in place of forging a prescription. These include:

• Forging or altering a prescription under Business and Professions Code 4324
• Possession of a controlled substance under HS 11350
• Prescribing controlled substances to a person with an addiction under HS 11156
• Doctor shopping or acquiring a prescription through fraud under HS 11173

Find a Seasoned White-Collar Crimes Defense Attorney Near Me

Forging or altering a prescription for narcotics is a severe offense that carries life-changing penalties if you are found guilty. A conviction can adversely affect your professional license, reputation, freedom, and immigration status, based on the circumstances of your case. Therefore, when you face the charge, it is advisable to consult with an experienced criminal defense attorney to discuss your case and advocate for your rights.

At CCLG: Los Angeles Criminal Attorney, we have experienced attorneys who will evaluate your case, gather evidence, and formulate defense strategies to help secure a favorable outcome. Call us today at 323-922-3418 for legal guidance.