Health & Safety Code § 11156 HS – Prescribing Controlled Substances to an Addict

Health & Safety Code § 11156 HS makes it a crime for medical professionals to prescribe, dispense, or administer controlled substances to a drug addict. A violation can be charged as a misdemeanor or a felony and is punishable by up to 3 years in county jail.

The full text of the statute reads:

11156. (a) Except as provided in Section 2241 of the Business and Professions Code, no person shall prescribe for, or administer, or dispense a controlled substance to, an addict, or to any person representing himself or herself as such, except as permitted by this division.

(b) (1) For purposes of this section, “addict” means a person whose actions are characterized by craving in combination with one or more of the following:

(A) Impaired control over drug use.

(B) Compulsive use.

(C) Continued use despite harm.

(2) Notwithstanding paragraph (1), a person whose drug-seeking behavior is primarily due to the inadequate control of pain is not an addict within the meaning of this section.

Examples

• a doctor prescribing methamphetamine to a stimulant addict.
• a nurse signing a codeine prescription for a person addicted to narcotic drugs.
• a pharmacist prescribing Oxycontin to an opiate addict.

Defenses

Criminal defense lawyers draw upon several legal strategies to help clients contest charges under this statute. A few common ones include lawyers showing that:

• there was a mistake of fact,
• a patient was not an addict, and/or
• the accused was entrapped.

Penalties

A violation of this code section is a wobbler offense. A prosecutor can charge a wobbler as either a misdemeanor or a felony.

A misdemeanor prescription drug conviction is punishable by custody in county jail for up to one year.

A felony conviction is punishable by up to three years in jail under California’s realignment program.

Our California criminal defense attorneys will answer the following key questions in this article:

• 1. How does California law define “prescribing controlled substances to an addict”?
• 2. Are there legal defenses to HS 11156 charges?
  • 2.1 Mistake of fact
  • 2.2 No addict
  • 2.3 Entrapment
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1 Prescription fraud by medical professionals – HS 11153
  • 4.2 Prescribing a controlled substance without treatment – HS 11154a
  • 4.3 Using fraud to get a prescribed controlled substance – HS 11173

Health & Safety Code 11156 HS makes it an offense for medical professionals to prescribe, dispense, or administer controlled substances to a drug addict.

1. How does California law define “prescribing controlled substances to an addict”?

A prosecutor must prove the following to convict a defendant under this statute successfully:

1. the defendant prescribed, administered, or dispensed a controlled substance, and
2. the accused prescribed the substance to someone who represents him- or herself as an addict.¹

For purposes of this statute, an “addict” is someone whose actions are characterized by a craving for a controlled substance in combination with one or more of the following:

• impaired control over drug use,
• compulsive use, or
• continued drug use despite harm.²

Example: Lisa is a pharmacist in a small town. An old high school classmate of hers named Mike comes into the pharmacy to fill a prescription for hydrocodone (Vicodin).

Lisa has recently had a conversation with Mike’s wife Sarah. Sarah told Lisa that Mike has been taking Vicodin compulsively since it was prescribed to him for a back injury a year ago. Sarah also told Lisa that she has decided to divorce Rich because of his Vicodin use.

Based on her conversation with Sarah, Lisa knows that Rich meets the definition of an addict under this section. If she dispenses the Vicodin to him anyway, she will be guilty of dispensing controlled substances to an addict under that law.

Note, though, a person is not considered an addict if he/she engages in drug-seeking behavior primarily due to inadequate control of pain.³

Example: After a car accident that left her with soft tissue damage, Maria suffers from intermittent severe pain in her legs. She has obtained prescriptions for several different strong painkillers from several different doctors, but none of them have helped her pain much.

Maria goes to see Dr. Reddy, who was recommended to her by a friend. She tells him that she has prescriptions for a number of painkillers but that none have helped her. He writes her a prescription for a strong intravenous painkiller that she has not tried yet.

Maria is displaying the kind of drug-seeking/doctor-shopping behavior that is often displayed by addicts. But Dr. Reddy is probably not guilty of prescribing controlled substances to an addict because Maria’s behavior seems to be the result of inadequate control of her pain.

2. Are there legal defenses to HS 11156 charges?

People in California State who are accused of a crime under this law have the right to challenge the accusation with a legal defense. Three common defenses include a defendant showing that:

1. there was a mistake of fact.
2. a patient was not an addict.
3. he/she was entrapped.

2.1. Mistake of fact

One of the most common legal defenses for fighting charges of prescribing controlled substances to an addict is the legal defense of “mistake of fact.”

According to Pasadena criminal defense attorney Karthik Krishnan⁴:

“Even though Health & Safety Code 11156 tries to define what an ‘addict’ is, most medical professionals know that it’s impossible to come up with a perfect definition—let alone to apply one. In the end, whether someone is an addict or not is a judgment call. If a doctor, nurse or pharmacist makes a good-faith mistake about someone’s motives in seeking prescription drugs, she or he should not be guilty of this crime”

2.2. No addict

People are only guilty under this statute if they prescribe a controlled substance to a person suffering from a drug addiction. Further, “addict” has a precise legal definition under this law. A valid defense is for a defendant to say that he/she did not prescribe a substance to a “drug addict.”

2.3. Entrapment

Entrapment is often used as a defense when a defendant is charged with drug crimes following an undercover sting. The defense asserts that law enforcement used some overbearing conduct to trick a person into committing a crime. The defense works so long as the accused shows that he/she only committed an offense because of the undercover officer’s conduct or entrapment.⁵

Violating this statute can result in a fine and jail time.

3. What are the penalties?

A violation of HS 11156 is a wobbler. A prosecutor can charge a wobbler as either a misdemeanor or a felony.

Potential misdemeanor penalties include:

• misdemeanor (summary) probation,
• up to one year in county jail (as opposed to state prison), and
• a fine of up to $20,000.⁶

Potential felony penalties include:

• felony (formal) probation,
• up to three years in jail, and/or
• a fine of up to $20,000.⁷

In addition to these penalties, medical professionals and health care workers are likely to face professional discipline (like suspending a medical license) in connection with a conviction under this law.

4. Are there related offenses?

There are three crimes related to prescribing a controlled substance to a drug addict. These are:

1. prescription fraud by medical professionals – HS 11153,
2. prescribing a controlled substance without treatment – HS 11154a, and/or
3. using fraud to get a prescribed controlled substance – HS 11173.

4.1. Prescription fraud by medical professionals – HS 11153

Per Health & Safety Code 11153, prescription fraud is the crime where a medical professional knowingly prescribes a controlled substance that:

• is not issued for a legitimate medical purpose, and/or
• is not issued in the usual course of his professional practice.

As with a violation of HS 11156, a violation of this law is a wobbler that can lead to a three-year jail term.

4.2. Prescribing a controlled substance without treatment – HS 11154a

Per Health & Safety Code 11154a, prescribing a controlled substance without treatment is the crime where a physician prescribes a controlled substance to anyone not under the physician’s treatment.

Note that if the physician does, and that person is also a drug addict, the party can be charged with both:

• prescribing a controlled substance without treatment, per HS 11154a, and
• prescribing a controlled substance to an addict, per HS 11156.

4.3. Using fraud to get a prescribed controlled substance – HS 11173

Under Health & Safety Code 11173, using fraud to get a prescription is the offense where people use fraud to obtain, or attempt to obtain, a controlled substance by way of a prescription.

As with charges under HS 11156, accused people can contest a charge under this code section with an entrapment defense.