Business & Professions Code 4324 – Forging a Prescription

California Business and Professions Code 4324 BP makes it a crime to

1. forge or alter a prescription,
2. sign someone else’s name (whether real or fictitious) on a prescription, or
3. possess drugs obtained with a forged prescription.

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 mediation) 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

Penalties

Business and Professions Code 4324 is a California “wobbler” offense. This means it can be charged as either a misdemeanor or a felony, at the prosecutor’s discretion.

If charged as a misdemeanor, the offense can be punished by:

• up to one year in county jail, and/or
• a fine of up to $1,000.

If charged as a felony, penalties include:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.

Defenses to Business and Professions Code 4324

There are many possible defenses to charges under Business and Professions Code 4324 BP. They include (but are not limited to):

• It wasn’t your signature on the prescription.
• You weren’t the one that called the pharmacy.
• You went to pick up prescriptions and didn’t realize some of the drugs weren’t ones your doctor had ordered.
• The prescription(s) or drugs were found during an illegal search.

Our attorneys include former prosecutors and cops. We now use our knowledge of the system to defend people accused of drug-related crimes.

To help you better understand the law, our California criminal defense lawyers discuss the following:

• 1. What is prohibited by Business and Professions Code 4324?
  • 1.1. The legal definition of “drug”
  • 1.2. The legal definition of “prescription”
  • 1.3. The legal definition of “utter”
• 2. What are the penalties for forging a prescription?
• 3. How can I fight the charges?
• 4. What is the Federal Controlled Substances Act – 21 USC 843?
• 5. Related offenses
  • 5.1. Health and Safety Code 11368 HS – forging or altering a prescription for a narcotic drug
  • 5.2. Health and Safety Code 11173 HS – doctor shopping / prescription fraud
  • 5.3. Health and Safety Code 11350 HS – possession of a controlled substance

1. What is prohibited by Business and Professions Code 4324?

California Business and Professions Code 4324 BP makes it a crime to:

• sign someone else’s name (whether real or fictitious) to a prescription for drugs,
• falsely:
  • make,
  • alter,
  • forge,
  • utter,
  • publish,
  • pass as genuine, or
  • attempt to pass as genuine

a prescription for any drugs, or

• possess any drugs secured by a forged prescription.⁴

1.1 The legal definition of “drug”

California Business and Professions Code 4025 BP defines “drug” to include:

• prescription drugs, and
• veterinary drugs

as well as drugs that can be obtained without a prescription.⁵

1.2 The legal definition of “prescription”

Under California Business and Professions Code 4040 BP, a “prescription” includes an order for a drug given:

• in writing
• by phone, or
• via electronic transmission (including by facsimile of a written prescription).⁶

Prescriptions must include, among other information:

1. the name of the patient,
2. the name and quantity of the drug prescribed and the directions for use,
3. the date of issue,
4. the name, address, and telephone number of the prescriber, and
5. the signature of the prescriber.⁷

1.3 The legal definition of “utter”

For purposes of Business and Professions Code 4324, the word “utter” has a broader definition than its everyday usage.

You falsely “utter” a prescription when:

1. you use, or attempt to use, a forged or altered prescription, and
2. you represent — through your words or conduct — that it is genuine.⁸

Example: Nicole’s doctor writes her a prescription for Vicodin after she sprains her wrist. He authorizes one refill, but Nicole changes the “1” to a “4.” When the pharmacist notes that this is a lot of pain medication for a sprain, Nicole innocently agrees and shrugs.

2. What are the penalties for forging a prescription?

Business and Professions Code 4324 is a “wobbler” offense under California law. The prosecutor can charge it as either a misdemeanor or a felony, depending on:

• the facts of the case, and
• your criminal history (if any).

If you are charged with Business and Professions Code 4324 as a misdemeanor, you face:

• up to one year in county jail, and/or
• a fine of up to $1,000.⁹

If charged as a felony, Business and Professions Code 4324 is punishable by:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.¹⁰

Alternatively, the judge can suspend your sentence and grant you:

• California misdemeanor probation (also known as “informal” or “summary”) probation, or
• California formal (felony) probation.¹¹

If you are given probation, you will likely serve little or no jail time. However, you will be on probation for several years (usually three, but occasionally as long as five). During that time, you will be required to comply with certain conditions, which may include:

• drug counseling,
• drug testing,
• payment of a fine,
• community service or labor (such as Caltrans roadside maintenance),
• warrantless searches of your person or property, and/or
• the requirement that you do not violate other laws.

In the case of felony probation, you will also have regular meetings (usually monthly) with a probation officer.

If you violate any of the conditions of your probation, the judge can revoke your probation and send you to jail.

3. How can I fight the charges?

Defending against a criminal charge under Business and Professions Code 4324 is often fact-specific. It depends on exactly what you are accused of doing.

Examples of fact-specific legal defenses include (but are not limited to):

• It wasn’t your signature on the prescription,
• The call wasn’t 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 it could be that you forged or altered a prescription, but it was only discovered as the result of an illegal search. In such a case, your California criminal defense attorney will file a Penal Code 1538.5 PC motion to suppress evidence.

If the 1538.5 motion is granted, any evidence found during the illegal search will be excluded from your case. The prosecutor may agree to probation instead of jail time. He or she may even drop the charges against you.

4. What is the Federal Controlled Substances Act – 21 USC 843?

21 USC 843(a)(3) makes it a crime 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.¹²

Violation of 21 USC 843 is a federal felony. The penalty for a first offense is:

• up to four years in federal prison.¹³

The penalty for a subsequent offense is:

• up to eight years in federal prison, and
• a fine of up to $250,000.¹⁴

5. Related offenses

5.1 Health and Safety Code 11368 HS – forging or altering a prescription for a narcotic drug

California Health and Safety Code 11368 HS is more specific than Business and Professions Code 4324. It makes it a crime to:

• forge or alter a prescription for a narcotic drug (such as opiates),
• issue or utter an altered prescription,
• issues or utter a prescription bearing a forged or fictitious signature, or
• obtain or possess any narcotic drug by any forged, fictitious, or altered prescription.¹⁵

Health and Safety Code 11368 is a wobbler offense.

If charged as a misdemeanor, it can be punished by:

• six months to one year in county jail, and/or
• a fine of up to $1,000.¹⁶

As a felony, it carries a possible sentence of:

• 16 months, or two or three years in California state prison, and/or
• up to a $10,000 fine.¹⁷

5.2 Health and Safety Code 11173 HS – doctor shopping / prescription fraud

Health and Safety Code 11173 HS (doctor shopping – obtaining a prescription by fraud) makes it a crime to obtain or attempt to obtain controlled substances by:

• fraud,
• deceit,
• misrepresentation,
• subterfuge,
• concealment of a material fact,
• false statements in a prescription or report,
• pretending to be a health care professional, or
• affixing a false or forged label to a package containing controlled substances.¹⁸

A common violation of Health and Safety Code 11173 is “doctor shopping.” You doctor shop when you use more than one provider and pharmacy to give you multiple prescriptions for controlled substances, with each not knowing about the others.2 This is also commonly referred to as “prescription fraud.”

Violation of Health and Safety Code 11173 is a wobbler offense.

As a misdemeanor, it is punishable by:

• up to one year in county jail, and/or
• a fine of up to $1,000.¹⁹

If charged as a felony, it can be punished by:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.²⁰

5.3 Health and Safety Code 11350 HS – possession of a controlled substance

California Health and Safety Code 11350 HS, possession of a controlled substance, makes it a crime to possess:

• illegal drugs, or
• prescription drugs without a valid prescription.²¹

Under 11350 HS, it is a misdemeanor to possess unlawfully many common street drugs and narcotic prescription drugs, including:

• heroin and other opiates,
• cocaine,
• mescaline,
• peyote and
• narcotic painkillers (such as Oxycontin and Vicodin).²²

Possession of these substances can lead to:

• up to one year in county jail, or
• probation with mandatory community service or a fine of $1,000 or more.²³

Possession of a controlled substance used to be prosecuted as a felony. But the offense was reduced to a misdemeanor under Proposition 47. If you were previously convicted as a felony, you likely are eligible now to get re-sentenced to a misdemeanor because of Proposition 47.

Call us for help…

For more information about California drug laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don’t hesitate to contact us at Shouse Law Group. We create attorney-client relationships throughout the state. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Pasadena, Torrance, Glendale, Long Beach and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada drug laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

Disclaimer: Past results and testimonials do not guarantee future results.

---