The Business and Professions Code 4324 and Health and Safety Code 11368 make it a criminal offense to forge, alter, or change a prescription. Under HS 11368, the crime is even more severe, especially when the reproduced or modified order is for obtaining narcotic drugs. These two statutes prohibit forging a signature on a prescription regardless of whether it belongs to a real or a fictitious person. California law is also against obtaining medicine or drugs using a fake prescription.
If you illegally alter, modify, or produce a prescription and use it to obtain medicine or drugs, you will face charges of violating HS 11368 and BP 4324. The penalties for this offense are severe, but with our help at the Orange County Criminal Lawyer, we can help you challenge the charges against you for a favorable outcome.
Understanding BP 4324
As earlier stated, two statutes in California prohibit forging or altering a prescription. One of these laws, BP 4324, criminalizes faking an order to obtain medicine, including veterinary drugs. If you are charged with violating this statute, the prosecutor must present factual and incriminating evidence against you.
The prosecutor must show the court that you had a prescription, the prescription was illegal or forged, and you intended or obtained the medicine in the prescription illegally. If determined beyond a reasonable doubt, you will be punished for the offense.
Before the jury or court condemns you for the crime, they will listen to your arguments against the allegations. With an experienced attorney in criminal law, you can successfully argue your case and avoid a conviction or receive a lighter sentence. Some terms are used to describe this statute, and understanding their meaning will help you while formulating your defense. Some of these critical terms include:
Understanding Drugs According to the Statute
Some drugs require a doctor’s prescription to obtain compared to over the counter drugs. It is equally a criminal offense for pharmacies to sell drugs to individuals that require an order without one or while knowing the prescription is forged. According to this statute, drugs describe medicines used in treating various ailments or managing some medical conditions.
Additionally, not all veterinary drugs can be obtained without a prescription. If you forged an order to receive veterinary medicines, you could also be charged with violating BP 4324.
What is a Prescription?
A prescription is a document given by a licensed doctor giving instructions on the drugs to obtain. An order can be handwritten, shared electronically, such as by email or send through the phone. Generally, a prescription includes the name of the patient or person obtaining the drugs and the number of drugs to be obtained. Additionally, an order will give instructions on using the drugs, the time it was written, contact, and details of the person that issued it and their signature.
The statute also talks about uttering a prescription. A prescription is uttered when:
- You obtain drugs or attempt using an altered or fake prescription
- You present it as genuine through your words or behavior
For instance, after surgery, your doctor prescribes for you Vicodin and antibiotics. However, you decide to add another drug to the prescription, such as Oxycontin, without the doctor’s authorization. When you present your order to the pharmacist, they notice that the pain medication is more than necessary. On asking you about the prescription, you shrug like you do not know what they are talking about. This defines the term utter according to the statute because, through your behavior, you insinuated the prescription to be genuine.
Understanding HS 11368
This statute, as earlier discussed, is similar to that of BP 4324 that also prohibits the forging and altering of prescriptions to obtain drugs or medicine that you would otherwise not have received. The law also states that taking narcotics or drugs that cause addiction by forging a prescription is illegal. Some of the drugs that fall under this description include:
- Acetyl fentanyl and
This statute also uses similar terms or phrases like those used in BP 4324 and described earlier. These terms include prescription and utter, and they have the same definition.
HS 11368 makes it criminal to:
- Alter, forge, utter or issue a fake prescription to obtain narcotic drugs
- Utter or issue an order for narcotic medications whose signature is fictitious or forged or
- Have, own, possess or receive narcotic medicines out of a false, altered or forged prescription
Possession, according to this law, is in two ways. The law recognizes constructive and actual possession as a basis to charge you with this offense. More than one person can actually and constructively possess an item at the same time. This is referred to as joint possession.
When you are said to be in actual possession, you are currently touching or holding the narcotic, or you can immediately access it. iThis means, even when it is not in your hand, it could be in your pocket or a bag you have with you.
When you are in constructive possession of an item or narcotic, you have a right over it or can control it, even if you cannot access it immediately. This means the narcotics or drugs might be in your office, home, or car. Constructive possession can also be when the drugs are possession with another person who is holding them for you or is your agent.
For instance, you can face allegations for this offense when you send your girlfriend to buy you morphine from a person that obtains them through forged prescriptions. Even if your girlfriend has the morphine, they are yours because they belong to you, and you send for them.
Possession can also be shared among several people or between two individuals. For instance, if you share the morphine with your girlfriend, then you both have and share joint possession of it, even when it is yours. In another way, you may store the morphine in a drawer that you both have access to, meaning you share constructive possession.
Determining the Offense of Forging or Altering a Prescription
When you face allegations of forging or altering a prescription, the prosecution must prove the charges by identifying multiple elements to the offense. The different charges you can face under this statute include:
You Altered, Forged, Obtained or Attempted to Obtain a Drugs Using a Fake Prescription
When you are faced with these accusations, a conviction can only happen if the prosecutor shows:
- You altered or forged the said prescription or
- Provided another person with a forged or fake order or
- You used or attempted to use phony prescription to receive drugs
- And the phony prescription was to buy you narcotics or medicine
- If you did not forge the prescription, but you knew it was forged and you used or attempted to use it
You were in Possession of Narcotics or Medicine obtained using a Fake Prescription
If charged with possessing or having narcotics or medicine that you purchased with a fake prescription, the prosecution must determine the following elements:
- You received or had drugs or prescription medicine
- You were aware you had it
- You knew the substances you had were narcotics or prescription medicines
- The drugs or medicines were in a sufficient amount to use
- The drugs or medication in your possession were obtained fraudulently using an altered or fake prescription
- You were aware the medicine or drugs were obtained in that manner
Usable quantity of narcotics under this statute means the amount you had was sufficient to be taken as a drug even when it is not enough to impair a person or get them high. Additionally, to be guilty of the crime, you do not need to comprehend the drug’s name, but as long as you know, it is a narcotic or controlled substance or a prescription one.
For instance, Peter asks his dealer to bring him something that makes him feel high. The dealer hands him a few pills and tells him they are prescription medicines and illegal to have. Peter goes ahead and pays for the tablets with full knowledge of their nature and obtained illegally. In this case, Peter can be charged with violating HS 11368.
Proving Knowledge According to HS 11368 and BP 4324
One of the critical elements of this crime is demonstrating knowledge. The prosecutor must show that you knew by:
- Presenting your statements or admissions to investigating or arresting officers
- Witness statements
- Admitting evidence of crimes you performed before that are related or
- By presenting circumstantial evidence.
For instance, in the above example, Peter bought the drugs knowing they are prescription drugs. The only way the dealer would have got the drugs is through a fake prescription. When Peter is arrested, he admits the pills belong to him, but he believed they were pain relievers purchased across the counter in Canada.
But, because Peter was previously convicted of a similar offense, the prosecution can present records of his prior conviction as evidence against him. This evidence will go to show that he knew the drugs he had on him were prescription, and the only way they were obtained is through a forged prescription.
Penalties for Violating HS 11368 and BP 4324
When charged with violating any of these statutes, the offense is a wobbler. This means the prosecutor can decide to charge you with a felony or a misdemeanor offense. The prosecutor’s decision largely depends on your criminal past, if any, and the circumstances of your crime. For instance, if you have no criminal background or a conviction on a similar offense, you are likely to face misdemeanor charges. On the other hand, if you were convicted of the same or a similar crime before or an aggravating factor was present during the offense’s commission, you can face felony charges.
If charged and convicted on a misdemeanor, the likely punishment you will receive includes:
- County jail imprisonment lasting between six and twelve months
- A cash fine of not more than $1,000
- A misdemeanor or summary probation
If the prosecutor chooses to charge you with a felony, a conviction is likely to earn you the following punishment:
- State imprisonment for not less than sixteen months and not more than three years
- A cash fine of not more than $10,000
- Formal or felony probation
If you are subjected to formal probation, you might be required to spend some time in prison or jail or not at all. However, probation as a punishment is issued with several conditions that must be adhered to for the active period. Most probation sentences last a minimum of three years, but they sometimes extend to five but not more. Some of the conditions you must fulfill when on probation include:
- Going for counseling and treatment for drug use or addiction
- You must pay the imposed fine by the court
- You must participate in community service for specified hours
- You must have regular meetings with your probation officer
- During the probation period, you must not commit another crime or use drugs
These, among other conditions, must be obeyed and a failure to do that can have your probation revoked, and a prison sentence issued in its place.
Possible Defenses for Violating HS 11368 and BP 4324
As earlier stated, these two offenses are similar or interrelated. The elements a prosecutor must determine and the terms used in the statutes are identical as well. Because of this, the defense strategies are similar for both violations in California.
The punishment for these offenses is severe, just like all other drug-related crimes. When you are charged with violating one of these statutes, you can challenge the allegations with the help of a lawyer. An experienced criminal attorney will study your case to determine the best defenses or arguments that will create doubt in the jury’s minds. Some possible arguments or defenses your attorney would use include:
You had a Lawful Prescription
Sometimes you can be wrongly or mistakenly charged with altering or forging a prescription. For instance, the police may be investigating a doctor suspected of writing bogus prescriptions. Unfortunately, you are hurt at work, and under the worker’s compensation scheme, you are told to see the same doctor.
The doctor prescribes some pain drugs to help manage your discomfort. Unknown to you that the doctor was under investigation, the police arrest you as you buy the medicine from the pharmacy. If this is the case, the evidence of your genuine prescription is presented, and the case against you dropped.
You had no Knowledge the Prescription was Altered or Forged
Knowledge is a critical element to determine for you to receive a conviction for the crime. Having a fake or altered prescription is not enough to find you guilty of the offense. The prosecutor must show the court that you knew the order you had was forged or altered as you tried using it for the drugs or medicine therein.
However, if you did not know you were holding a fake prescription, you cannot be guilty of the offense even when you knew the nature of the drugs or medicine. For instance, your roommate was involved in an accident that left them injured and in great pain. After going to the hospital, they were prescribed for pain medication to manage their situation. Your roommate goes ahead, alters the quantities in the prescription without your knowledge, and asks you to pick the drugs.
Unfortunately, you are arrested for altering a prescription, and you receive charges for breaking the law. Fortunately, your lawyer can argue you did not know the order was changed, and the drugs were not yours. With evidence, your lawyer can have the charges against you dropped, especially when the prosecutor cannot prove you knew about the altered prescription.
You were not aware the Drugs in your Possession were Fraudulently Obtained
If you are charged with violating these statutes by having drugs obtained with forged prescriptions, you can argue your case if you never knew how they were obtained. For instance, you were in pain, and a friend offered to sell you pain medications that the mother remained after prior surgery. You believe the drugs were genuinely bought, and you agree to buy them.
Unknown to you, your friend had forged a prescription to obtain the drugs and sell for profit. If arrested and charged for having those drugs, you can use this argument to have the case dropped.
You Never Knew there were Drugs
Sometimes you can be wrongly charged with violating these statutes. For instance, the police have been investigating your roommate to use fake prescriptions and obtain drugs to sell. Your roommate has put the drugs in the shared bathroom, but you do not know what they are or that they are there. Unfortunately, the police search the house, and the drugs are found in your shared space.
If this happens, you receive charges alongside your roommate for having the drugs in your house. However, if you did not know what your roommate does and that the drugs or controlled medicines were there, you are not guilty. Your lawyer can present a convincing argument with evidence and have you acquitted of the offense.
An Unlawful Search Produced the Drugs
The law prohibits police officers from conducting illegal searches on individuals or properties. If you were illegally searched and the drugs seized, the evidence of the drugs cannot be used in court against you. For instance, you were driving and made an illegal turn. A highway patrol officer sees you and asks you to stop for citation. Instead, he decides to ask you to step out of your vehicle and proceeds to search it without a probable cause or a search warrant. If he finds the drugs or medicine during the illegal search, he may arrest you for having them.
However, because the search was unlawful, the medications found will not be used as evidence against you. Without the drugs, it is unlikely the prosecutor will have a conviction, prompting them to dismiss them.
The Prescription was Legal
Sometimes a pharmacist may suspect your prescription is forged and report you when it is not. The police may also arrest you and charge you with using a fake order to obtain the drugs. If the prescription was legally issued, your lawyer could have the doctor who wrote it testify. As a result, no charges will stick against you.
The Hospital or Doctor Made a Mistake
Sometimes a doctor can make a mistake when writing or issuing a prescription. If this happens and you are charged with violating these laws, your lawyer can present evidence that the order was mistakenly issued. A pharmacist can also make a mistake when issuing the drugs. For instance, if your prescription was for 20 Morphine, the pharmacist can make a mistake and give you 30 of them without your knowledge.
If this was the case, you can produce a copy of the prescription that you presented to the pharmacist as evidence and have the charges dismissed.
Drug Offenses and your Immigration Status
The U.S Immigration and Customs Enforcement is automatically informed of your conviction for these offenses if you are an immigrant. Violating or attempting to break any statute relating to drugs in California forms deportation grounds. When you are an immigrant and find yourself charged with any of these offenses, you must immediately contact your attorney to fight against a deportation.
There are other associated offenses of altering or forging a prescription. These offenses can be charged alongside or instead of the above-discussed crimes. Some of the related crimes include:
- HS 11350 – Having or possessing controlled substances
- HS 11156 – Issuing an addict with a prescription for controlled substances
- HS 11173 – Doctor shopping or prescription fraud
Find a Criminal Attorney Near Me
Any drug-related offense is severely punished in California. If faced with charges of forging or altering a prescription, you typically assume you do that as an addict or to profit from the drugs. The state has strict controls over narcotics and some prescription drugs, making them only accessible when a doctor prescribes them.
When faced with these allegations, your primary goal should be avoiding a conviction or receiving a favorable one. At Orange County Criminal Lawyer, we are experienced in criminal law and have helped many defendants faced with similar allegations. Call our office at 714-262-4833 to schedule a time we can discuss your case.