California "prescription fraud" can be committed by either patients or doctors. Patients who engage in "doctor shopping" by committing fraud to get a prescription violate Health & Safety Code 11173 HS.1 Doctors who write illegal prescriptions violate Health & Safety Code 11153 HS.2
HS 11173 doctor shopping/prescription fraud occurs when a patient obtains or attempts to obtain a prescription for controlled substances—including painkillers such as hydrocodone (“Vicodin”)—through:
- Fraud, deceit, misrepresentation, or subterfuge; or
- The concealment of a material fact.3
HS 11153 prescription fraud is committed by doctors and other medical professionals authorized to write prescriptions.
Medical professionals commit prescription fraud when they write prescriptions for controlled substances that are not issued for legitimate medical purposes, and/or are not issued in the usual course of their professional practice.
Here are some examples of people who could be prosecuted for prescription fraud or doctor shopping in California:
- A man who is addicted to Vicodin has his girlfriend see a doctor and pretend to be suffering from chronic back pain in order to get a prescription for Vicodin—which she then gives to him.
- An elderly woman becomes addicted to codeine while recovering from surgery; she then sees several doctors at once and obtains prescriptions for more codeine from all of them.
- A doctor develops a reputation among prescription drug addicts for writing prescriptions “no questions asked,” for a flat fee per prescription.
Prescription fraud/doctor shopping—whether it is committed by a patient or a medical professional, under HS 11173 or HS 11153—is a wobbler in California law.4
Misdemeanor prescription fraud is punishable by up to one (1) year in county jail. Felony prescription fraud carries a potential jail sentence of sixteen (16) months, two (2) years or three (3) years.6
Plus, a medical professional convicted of HS 11153 prescription fraud is likely to lose his/her professional license.
Prescription fraud/doctor shopping charges can devastate your life. And these charges are often brought against people who are already suffering from medical problems—and sometimes issues with drug dependence as well.
But just being charged doesn't mean you will be convicted. We have helped our clients fight HS 11173 or 11153 charges with the following legal defenses:
- You did not use fraud or deceit to obtain a prescription (for HS 11173 charges);
- You did not knowingly write a prescription for a non-legitimate purpose (for HS 11153 charges); and/or
- The legal defense of entrapment.
In order to help you better understand the California crime of prescription fraud, our California prescription fraud defense attorneys will address the following:
- 1. What is the Legal Definition of Prescription Fraud?
- 1.1. Health & Safety Code 11173 HS prescription fraud/doctor shopping
- 1.2. Health & Safety Code 11153 HS prescription fraud by medical professionals
- 2. What are the Penalties for HS 11173 / HS 11153 Prescription Fraud?
- 3. How Can I Fight HS 11173 / HS 11153 Prescription Fraud Charges?
- 4. Health & Safety Code 11173/11153 and Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
There are two major forms of California prescription fraud: California Health & Safety Code 11173 prescription fraud by patients, and California Health & Safety 11153 prescription fraud by doctors, nurses and other professionals.
The legal definition of prescription fraud/doctor shopping committed by patients under Health & Safety Code 11173 HS is as follows:
- You either obtained, attempted to obtain, procured the administration or prescription of, or attempted to procure the administration or prescription of, a controlled substance; and
- You did so either by fraud, deceit, misrepresentation or subterfuge, OR by the concealment of a material fact.7
Let's take a better look at these “elements of the crime” in order to better understand the legal definition of HS 11173 prescription fraud.
Obtain or procure the administration or prescription of
Health & Safety Code 11173 HS makes it a crime to do any of the following:
- Obtain or attempt to obtain a controlled substance;
- Procure or attempt to procure the administration of a controlled substance; or
- Procure or attempt to procure the prescription of a controlled substance.8
This means that you can technically commit this form of prescription fraud even if no prescription is actually involved.
Example: Todd is addicted to the powerful painkiller Dilaudid (hydromorphone).
He frequently goes to his local emergency room claiming that he suffers from chronic severe back pain due to an old work injury—which is not true—so that the staff will administer him this drug through an IV at the hospital.
Todd even sometimes brings fake identification to the ER and gives the staff false names, since he is concerned that they will catch on and stop giving him the drug.
Todd is guilty of prescription fraud for procuring the administration of a controlled substance. (He may also be charged with Penal Code 470b possession of a fake ID.)
This also means that you can be convicted of prescription fraud under California Health & Safety Code 11173 HS even if you never actually obtain a drug or a prescription for a drug. All that's required is that you attempt to obtain a drug or prescription.9
Example: Rebecca is a former heroin addict who gives up drugs when she becomes pregnant.
But then her baby is delivered by Cesarean section, and her recovery is especially painful. She relies on Vicodin to get through the recovery.
Rebecca finds herself becoming addicted to Vicodin. She visits her doctor and falsely claims to be experiencing continuing pain even after her pain has actually ended. But the doctor is skeptical and refuses to write her a prescription.
Rebecca may be guilty of prescription fraud for attempting to get a prescription through deceit—even though she didn't succeed.
A controlled substance
Some prescription drugs that are often involved in prescription fraud cases include:
- Hydrocodone (Vicodin);
- Adderall; and
Health & Safety Code 11173 HS covers attempts to obtain prescriptions or prescription drugs by any of the following:
- Subterfuge; OR
- Concealment of a material fact.11
“Fraud” is the act of knowingly misrepresenting the truth, or concealing a material fact, in order to get another person to act in a way that harms his/her interests.12
In other words, you commit prescription fraud when you lie OR conceal a material fact in order to obtain prescription medication
Example: Luke is seeing a number of different doctors after a car accident that left him with multiple injuries. He has received a prescription for oxycodone to treat his pain from one of his doctors.
Luke discovers that he can make good money selling his oxycodone to recreational drug users So he goes to several other doctors for his pain (which is real) and gets each of them to prescribe him oxycodone. He keeps some for himself and sells the rest.
Luke did not actually lie to these doctors—he really does need the oxycodone for his pain. But he concealed the fact that he was “doctor shopping” to get multiple prescriptions. So he is guilty of prescription fraud.
You can also commit HS 11173 prescription fraud by giving a false name or a false address in connection with prescriptions for a controlled substance.13
California Health & Safety Code 11153 HScovers the crime of prescription fraud when it is committed by doctors, nurse practitioners, and other medical professionals.
The legal definition of this form of prescription fraud is knowingly issuing a prescription that is:
- Not for a legitimate medical purpose; and/or
- Outside the usual course of the practitioner's professional practice.14
This form of prescription fraud can be committed by any medical professional authorized to issue a prescription—including:
- Nurse practitioners; and
Example: Students at competitive high schools in wealthy neighborhoods regularly take drugs like Adderall and Ritalin to help them focus while studying—even though most of these students don't have any psychiatric condition or learning disability that would warrant a prescription for those drugs.
Klaus is a psychiatrist with an office in one of these wealthy neighborhoods. He regularly sees these students for brief consultations for a high fee.
If students tell them they are stressed out about schoolwork, Klaus will write them a prescription, no questions asked. Klaus is well aware that his patients are just using these drugs as a study aid and not to treat a disease.
Klaus is guilty of HS 11153 prescription fraud by a medical practitioner for writing prescriptions that are not for legitimate medical purposes.
Note that a medical professional can only commit prescription fraud if s/he acts knowingly. If s/he writes a prescription in good faith, believing that it is for a legitimate medical purpose, then s/he is not guilty of California Health & Safety Code 11153. (However, if s/he knows or has reason to believe that the patient is addicted to the medication, s/he may still face charges of prescribing controlled substances to an addict under Health & Safety Code 11156.)15
The problem of “reckless prescribing” by physicians and other medical professionals has gotten a lot of attention in the media over the last few years.16 California law enforcement has taken notice of this—and is working to combat the problem through more aggressive enforcement of prescription fraud laws against doctors and nurses.
California prescription fraud—under both Health & Safety Code 11173 and Health & Safety Code 11153—is what is known as a “wobbler” offense.17
This means that the prosecutor may choose to charge it as EITHER a misdemeanor or a felony.18 Prosecutors usually base this decision on:
- The exact nature of the allegations; and
- The defendant's criminal history.
Misdemeanor prescription fraud/”doctor shopping” carries the following potential penalties:
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).19
Prescription fraud as a felony, under either Health & Safety Code 11173 HS or Health & Safety Code 11153 HS, carries the following potential penalties:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years, served in county jail under California's realignment program; and/or
- A fine of up to twenty thousand dollars ($20,000).20
Plus, California prescription drug fraud laws are not covered by California's drug diversion program or California Proposition 36. This means that these programs—which provide for court-supervised drug treatment instead of a criminal sentence—are not available to people convicted of HS 11173 doctor shopping.21
A California doctor charged with Health & Safety Code 11153 HS prescription fraud naturally needs to be concerned about doctor discipline and possible medical license suspension.
Any criminal conviction for an offense that is “substantially related” to the qualifications, functions, or duties of a physician can trigger professional discipline of doctors in California.22 Prescription fraud almost certainly will be deemed to fall into this category.
The worst case scenario for doctor discipline for HS 11153 prescription fraud is suspension or revocation of your medical license by the Medical Board of California.
Nurses can also face nurse discipline and license revocation (in some cases) as a result of a prescription fraud conviction.23
According to San Jose criminal defense attorney Reve Bautista24:
“Prescription drug fraud cases are some of the most heartbreaking cases I see as a criminal defense lawyer. Very often the defendants are not your typical lawbreakers. Instead they're people who suffer from real pain and may have become addicted to pills in the first place because of a doctor's negligence.”
But there is help available. If you or a loved one is accused of prescription fraud, under Health & Safety Code 11173 or 11153 HS, one of the following legal defenses may be the ticket to getting the charges reduced or dismissed.
You did not use fraud or deceit to obtain a prescription
It could well be that you have a problem with abuse of prescription drugs. You may have been obtaining these drugs both to treat pain or another medical condition and to feed the addiction.
But unless you actually lied to—or concealed a material fact from—your doctor or nurse practitioner, you did not commit prescription fraud. It is quite possible that s/he wrote you the prescription quickly or automatically, without asking many questions.
Unless the prosecutor can prove that you actually behaved in a fraudulent or deceptive fashion, you are not guilty under Health & Safety Code 11173.
You did not knowingly prescribe a controlled substance for a non-legitimate purpose
On the flip side, a patient may have obtained a prescription for a controlled substance that turned out not to serve a legitimate medical purpose—but that does not mean that the practitioner who wrote the prescription committed Health & Safety Code 11153 prescription fraud.
HS 11153 requires that a medical professional knowingly write a prescription that does not serve any legitimate medical purpose.25 But in many cases the doctor wrote the prescription out of carelessness or because of misrepresentation by the patient.
In the current rush to crack down on “reckless prescribers,” many doctors and other medical professionals whose specialty involves patients with chronic pain are being charged with prescription fraud for mere mistakes. But mistakes—even serious ones—are not enough to make one criminally liable.
You were entrapped
“Entrapment” occurs when a law enforcement officer behaves in an overbearing way—and as a result a defendant engages in behavior s/he otherwise would not have.26
Entrapment can occur when police officers conducting undercover “sting” operations talk you into doing something through:
- Flattery; or
While such cases are probably rare, entrapment could be a viable legal defense in certain cases of HS 11153 prescription fraud by a medical practitioner.
For example, it could be the case that an undercover police officer offered a ridiculously high fee to a doctor or nurse to write an unnecessary prescription. Perhaps the doctor or nurse was having financial troubles, and the size of the offer was enough to induce him/her to do something s/he would not otherwise ever have done.
California crimes that are often charged instead of or along with prescription fraud include:
Forging or altering a prescription HS 11368
Forgery or alteration of a prescription Health & Safety Code 11368 HS occurs when someone:
- Forges or alters a prescription for a narcotic drug;
- Uses a prescription with a forged signature to obtain or try to obtain a narcotic drug; or
- Possesses narcotic drugs that were obtained with a forged prescription.28
It is not uncommon for people with prescription drug addictions to be charged with both HS 11173 and HS 11368.
Forging or altering a prescription is a wobbler. The misdemeanor sentence is at least six (6) months and up to one (1) year in county jail. The felony sentence is sixteen (16) months, two (2) years or three (3) years in state prison.29
Possession of a controlled substance HS 11350
Let's say you are accused of lying to obtain a prescription for a controlled substance—and then are found with the drug in your possession.
If you are initially charged with Health & Safety Code 11173 HS prescription fraud, you and your criminal defense attorney may want to try to get the charges reduced to Health & Safety Code 11350 HS possession of a controlled substance.
“Simple possession” can be a preferable charge for two reasons. First, it is only a misdemeanor in most cases, punishable by up to one (1) year in county jail.30
Second, unlike prescription fraud, possession of a controlled substance is an offense eligible for deferred entry of judgment (drug diversion) or Proposition 36 drug treatment in lieu of a jail sentence.31
Sale or transportation of a controlled substance HS 11352
It is also common for defendants to be charged with both HS 11173 prescription drug fraud and sale or transportation of a controlled substance under Health & Safety Code 11352 HS.
This might happen if, for example, you are accused of fraudulently obtaining prescription drugs and then re-selling them for a profit.
Sale or transportation of a controlled substance is a felony in all cases. The potential sentence ranges from three (3) to nine (9) years.32
Driving while addicted to a drug VC 23152(c)
Driving while addicted to a drug, Vehicle Code 23152(c) VC, is an obscure form of California DUI. Defendants who can be shown to have driven a vehicle while addicted to a drug--including prescription drugs--are subject to California DUI penalties--even if they weren't under the influence of the drug when they drove.33
Even though this crime is rarely prosecuted, it is possible for a defendant accused of California Health & Safety Code 11173 HS prescription drug fraud to also face charges for this offense if the investigation reveals a basis for it.
As a DUI crime, addicted driving is usually a misdemeanor--but may be charged as a felony if the defendant has three (3) or more prior DUI convictions.
Call us for help…
For questions about the crime of HS 11173 or HS 11153 prescription drug fraud/doctor shopping in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on doctor shopping and prescription fraud in Nevada law, please see our page on doctor shopping and prescription fraud in Nevada law.
California Prescription Drug Monitoring Program – allows medical practitioners to access their patients' controlled substance history.
1 Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation [doctor shopping form of California prescription fraud]. (“(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. (b) No person shall make a false statement in any prescription, order, report, or record, required by this division. (c) No person shall, for the purpose of obtaining controlled substances, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician's assistant, or other authorized person. (d) No person shall affix any false or forged label to a package or receptacle containing controlled substances.”)
2 Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties [prescription fraud by medical professionals]. (“(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. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. Except as authorized by this division, the following are not legal prescriptions: (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled substances, which is issued 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. (b) Any person who knowingly violates this section shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both that fine and imprisonment. (c) No provision of the amendments to this section enacted during the second year of the 1981-82 Regular Session shall be construed as expanding the scope of practice of a pharmacist.”)
3 Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation [doctor shopping form of California prescription fraud], endnote 1 above.
4 Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties [prescription fraud by medical professionals], endnote 2 above.
See also Health & Safety Code 11371.1 HS – Fraud and false representation [prescription fraud]; inducing minor to violate provisions; punishment. (“Any person who shall knowingly violate any of the provisions of Section 11173 [HS] or 11174 with respect to (1) a controlled substance specified in subdivision (b), (c), or (d) of Section 11055, or (2) a controlled substance specified in paragraph (1) of subdivision (b) of Section 11056, or (3) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V, or who in any voluntary manner solicits, induces, encourages or intimidates any minor with the intent that such minor shall commit any such offense, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail not exceeding one year.”)
See also Penal Code 1170(h) PC. (“(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
7 Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation [form of California prescription fraud], endnote 1, above.
10 See Health & Safety Code 11007 HS – Controlled substance [for purposes of prescription fraud laws]. (““Controlled substance,” unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.”)
11 Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation [form of California prescription fraud], endnote 1, above.
12 Black's Law Dictionary (9th ed. 2009), fraud. (“1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. • Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime [such as HS 11173 or HS 11153 prescription fraud].”)
13 Health & Safety Code 11174 HS – False name or address [form of prescription fraud]. (“No person shall, in connection with the prescribing, furnishing, administering, or dispensing of a controlled substance, give a false name or false address.”)
14 Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties [prescription fraud by medical professionals], endnote 2, above.
See also Health & Safety Code 11210 HS – Conditions authorizing prescription; quantity; duration [violating these can lead to prescription fraud charges].
See also Health & Safety Code 11156 HS - Prescribing controlled substances to an addict.
16 See, e.g., Legal Drugs, Deadly Outcomes, Los Angeles Times, Nov. 11, 2012.
17 Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation [form of California prescription fraud], endnote 1, above; Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties [prescription fraud by medical professionals], endnote 2, above; Health & Safety Code 11371.1 HS – Fraud and false representation [prescription fraud]; inducing minor to violate provisions; punishment, endnote 4, above.
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors [including misdemeanor prescription fraud] or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
See also Penal Code 1170(h) PC.
21 Penal Code 1000 PC – Application of chapter to certain violations [does not include HS 11173]; Penal Code 1201 PC – Definition of terms included in Prop 36 [does not include prescription fraud in definition of “nonviolent drug possession offense”].
22 See Business & Professions Code 2236 – Criminal convictions and doctor discipline [may apply to doctors convicted of prescription fraud].
23 See Business & Professions Code 2761 -- Criminal convictions and nurse discipline [may apply to nurses convicted of prescription fraud].
24 San Jose criminal defense attorney Reve Bautista has over two decades of experience as a prosecutor, first at the office of the Contra Costa District Attorney and then at the San Francisco DA's Office. She conducted over 100 jury trials and other proceedings. Now, as a criminal defense lawyer fighting for her clients' rights, she defends against a variety of drug charges, including prescription fraud.
25 Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties [prescription fraud by medical professionals], endnote 2, above.
26 See People v. West (1956) 139 Cal.App.2d Supp. 923, 924. ("Entrapment is the conception and planning of an offense [such as prescription fraud] by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.")
27 See same.
28 Health & Safety Code 11368 HS – Forged or altered prescriptions; punishment [related offense to prescription fraud].
30 Health & Safety Code 11350 HS – Possession of controlled substances [possible plea bargain from HS 11173 prescription fraud].
31 See endnote 21, above.
32 Health & Safety Code 11352 HS – Transportation, sale, giving away, etc., of designated controlled substances; punishment; definition; prosecution for aiding and abetting [may be charged along with HS 11173 or HS 11153 prescription fraud].
33 Vehicle Code 23152(c) VC -- Driving while addicted to a drug [may be charged along with HS 11173 prescription drug fraud].