California Business and Professions Code 4324 BP makes it a crime to forge a prescription or possess drugs obtained through a forged prescription. This crime can be a misdemeanor or a felony, at the prosecutor’s discretion.
Examples
- Pamela telephones a pharmacy pretending to be a doctor and orders a prescription for 90 for herself.1
- Bernie steals a prescription pad from his doctor. He writes a prescription for Fentanyl (a powerful pain medication) made out to his mother and signs the doctor’s name.2
- Janine’s doctor writes her a prescription for 10 tablets of Oxycontin. Janine changes the “1” in the number “10” so that it says “40.”3
To help you better understand the law, our California criminal defense lawyers discuss the following:
BP 4324 makes it a crime to forge prescriptions.
1. What is BP 4324?
California Business and Professions Code 4324 BP makes it a crime to:
- possess any drugs secured by a forged prescription, or
- sign someone else’s name (whether real or fictitious) to a prescription for drugs, or
- falsely:
- make,
- alter,
- forge,
- utter,
- publish,
- pass as genuine, or
- attempt to pass as genuine
a prescription for any drugs.4
Note that a “prescription” includes an order for a drug given:
- in writing
- by phone, or
- via electronic transmission (including by facsimile of a written prescription).
Prescriptions must include, among other information:
- the name of the patient,
- the name and quantity of the drug prescribed and the directions for use,
- the date of issue,
- the name, address, and telephone number of the prescriber, and
- the signature of the prescriber.5
2. Penalties
Business and Professions Code 4324 is a “wobbler” under California law. The prosecutor can charge it as either a misdemeanor or a felony.
If you are charged with Business and Professions Code 4324 as a misdemeanor, you face:
- up to 1 year in county jail, and/or
- a fine of up to $1,000.
If charged as a felony, Business and Professions Code 4324 is punishable by:
- 16 months, or 2 or 3 years in county jail, and/or
- up to a $10,000 fine.
Alternatively, the judge can suspend your sentence and grant you probation.6 If you violate any of the conditions of your probation – such as drug testing or attending drug counseling – the judge can revoke your probation and send you to jail.
3. Defenses
How to fight criminal charges under Business and Professions Code 4324 depends on exactly what you are accused of doing. Examples of legal defenses include (but are not limited to):
- It was not your signature on the prescription,
- The call was not made from your phone,
- The call came from your phone, but someone else made it,
- Someone at the doctor’s office or pharmacy made a mistake, or
- Police found its evidence as a result of an illegal search.
Forging a prescription can be a misdemeanor or a felony in California.
4. Federal Law
21 USC 843(a)(3) makes it a federal felony to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.
Federal law is most often used to punish:
- doctors and pharmacists who falsify large numbers of prescription drug records, and
- people who traffic in large quantities of drugs obtained by forged prescriptions.
A first-time violation of 21 USC 843 carries up to four years in federal prison. The penalty for a subsequent offense is:
- up to 8 years in federal prison, and
- a fine of up to $250,000.7
5. Related Offenses
- Health and Safety Code 11173 HS – doctor shopping / prescription fraud
- Health and Safety Code 11350 HS – possession of a controlled substance
- Health and Safety Code 11368 HS – forging or altering a prescription for a narcotic drug
Additional Reading
For more information, see these scholarly articles:
- Role of Litigation in the Fight against Prescription Drug Abuse – West Virginia Law Review.
- Doctoring Prescriptions: Federal Barriers to Combating Prescription Drug Fraud against On-Line Pharmacies in Washington – Washington Law Review.
- The Pharmacist’s Responsibility to Evaluate Suspicions Prescriptions – Food Drug Cosmetic Law Journal.
- Prescription Opioid Forgery: Reporting to Law Enforcement and Protection of Medical Information – Pain Medicine.
- What you can do about forged prescriptions – Medical Chronicle.
Legal References:
- Based on People v. Firestine (1968) 268 Cal.App.2d 533.
- Adapted from Drug Enforcement Administration, A Pharmacists Guide to Prescription Fraud, Vol. 1, Issue 1, February 2000.
- Same.
- California Business and Professions Code 4324 BP:
(a) Every person who signs the name of another, or of a fictitious person, or falsely makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in a county jail for not more than one year.(b) Every person who has in his or her possession any drugs secured by a forged prescription shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in the county jail for not more than one year. - California Business and Professions Code 4025 BP: “Drug” means any of the following:
(a) Articles recognized in the official United States Pharmacopoeia, official National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement of any of them.(b) Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals.(c) Articles (other than food) intended to affect the structure or any function of the body of humans or other animals.(d) Articles intended for use as a component of any article specified in subdivision (a), (b), or (c). California Business and Professions Code 4040 BP. - California Business and Professions Code 4324 BP. See also California Penal Code 672 PC. 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 or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed. See also California Penal Code 1170(h)(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. California Penal Code 1203 PC.
- See, for example, United States v. Acklen (1982) 690 F.2d 70. 21 USC 843(d)(1) Except as provided in paragraph (2), any person who violates this section shall be sentenced to a term of imprisonment of not more than 4 years, a fine under title 18, or both; except that if any person commits such a violation after one or more prior convictions of him for violation of this section, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 8 years, a fine under title 18, or both. . See also 18 USC 3571:(a) In General.— A defendant who has been found guilty of an offense may be sentenced to pay a fine. (b) Fines for Individuals.— Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of—… (3) for a felony, not more than $250,000.