Business & Professions Code 725(b) BPC – Excessive Prescribing of Drugs

Business and Professions Code 725(b) BPC makes it a crime for a person (usually a doctor) to engage in repeated acts of excessively prescribing drugs. This offense is a misdemeanor punishable by up to 180 days in jail and a fine of up to $600.00.

725(b) BPC states that

Any person who engages in repeated acts of clearly excessive prescribing or administering of drugs or treatment is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than six hundred dollars ($600), or by imprisonment for a term of not less than 60 days nor more than 180 days, or by both that fine and imprisonment.

The code section applies to doctors and other medical professionals that can lawfully write a prescription.

Examples

• A doctor, on more than one occasion, prescribes a patient with an amount of medication that is clearly outside industry standards.
• A registered nurse practitioner repeatedly prescribes patients with medication with no medical basis and in clearly excessive amounts.
• A physician writes a prescription for a patient, on four instances, for a dose of medication that is beyond the appropriate standard of care.

Defenses

Luckily, there are several legal defenses that a person can raise. These include showing that an accused party:

• did not prescribe an “excessive” amount of drugs;
• prescribed too many drugs but only on one occasion.; and/or,
• was entrapped.

Penalties

A violation of this section is charged as a misdemeanor (as opposed to a California felony or an infraction). The crime is punishable by:

• imprisonment in the county jail for between 60 and 180 days; and/or,
• a fine between $100 and $600.

Our California criminal defense attorneys will explain the following in this article:

• 1. When is it a crime to prescribe drugs excessively?
• 2. Are there defenses to Business & Professions Code 725?
  • 2.1 Not an “excessive” amount
  • 2.2 Isolated offense
  • 2.3 Entrapment
• 3. Penalties, punishment, and sentencing
• 4. Related offenses
  • 4.1 False statement to obtain a drug – BPC 4323
  • 4.2 Doctors writing illegal prescriptions – HSC 11153
  • 4.3 Forging or altering a prescription – BPC 4324

1. When is it a crime to prescribe drugs excessively?

Business and Professions Code 725 BPC is the California statute that makes it a crime for a “person” to engage in:

“repeated acts of clearly excessive prescribing or administering of drugs.”¹

A “person” under this code section means anyone that can legally prescribe a drug.

The determination as to whether a person is prescribed an “excessive” amount of drugs is determined by customary practices and the reasonable standard of care.²

If the facts of a case show that a prescription was for a quantity of drugs outside industry norms and/or beyond the normal standard of care, then the amount is likely excessive.³

2. Are there defenses to Business & Professions Code 725?

A person accused under 725(b) BPC can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses are:

1. not an “excessive” amount;
2. isolated offense and/or,
3. entrapment

2.1. Not an excessive amount

Please recall that the law only penalizes the “excessive” prescribing of drugs. And, “excessive” is based upon the facts of a case and industry practices. Therefore, it is always a defense for an accused to show that his prescriptions were not excessive since they were well within customary practices and well in line with the appropriate standard of care.

2.2. Isolated offense

Please also recall that a person commits a crime under the statute in question if he engages in “repeated” acts of excessive prescribing. “Repeated” means an act is done several times. A good legal defense, therefore, is if a person can show that, while he may have excessively prescribed a drug, he did so on only one limited occasion.

2.3. Entrapment

In many of these cases, suspects are often arrested and accused after an undercover officer receives a prescription from them. Any later charges under the code section, though, must get dropped if the officer lured a suspect into committing the crime.

This “luring” is known as entrapment. It applies to overbearing official conduct on the part of police officers, like pressure, harassment, fraud, flattery, or threats. Entrapment is an acceptable legal defense provided that the accused shows he only committed the crime because of the entrapment.

3. Penalties, Punishment, and Sentencing

A violation of BPC 725(b) is charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for between 60 and 180 days; and/or,
• a fine between $100 and $600.⁴

Please note that in lieu of jail time a judge may order a defendant to misdemeanor probation. This is also called “summary” or “informal” probation.

4. Related Offenses

There are three crimes related to the excessive prescribing of drugs. These are:

1. false statement to obtain a drug – BPC 4323;
2. doctors writing illegal prescriptions – HSC 11153; and,
3. forging or altering a prescription – BPC 4324.

4.1. False statement to obtain a drug – BPC 4323

It is a crime in California, per Business and Professions Code 4323, for a person to make false statements to a pharmacist in order to get a drug.

A person can violate this code section in two different ways.

First, it is a crime under BPC 4323 if:

• a defendant falsely represents himself to be a physician or other person that can lawfully prescribe a drug, in order to get a drug; and,
• the misrepresentation, or false statement, took place in an electronic or telephone communication with a pharmacist.⁵

Second, it is a crime under BPC 4323 if:

• a defendant falsely represents that he is acting on behalf of a person legally authorized to prescribe a drug (e.g., a doctor), in order to get a drug; and,
• the misrepresentation, or false statement, took place in an electronic or telephone communication with a pharmacist.⁶

A violation of BPC 4323 is charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for up to one year; and/or,
• a maximum fine of $1,000.⁷

4.2. Doctors writing illegal prescriptions – HSC 11153

Per California Health and Safety Code 11153, it is a crime for a doctor to write an illegal prescription.

HSC 11153 says that a medical professional writes an illegal prescription when he writes 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.⁸

A violation of this code section is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

Misdemeanor offenses are punishable by imprisonment in the county jail for up to one year. Felony offenses carry a potential jail sentence of 16 months, two years or three years.⁹

4.3. Forging or altering a prescription – BPC 4324

It is a crime in California, per California Business and Professions Code 4324, to forge or alter a prescription.

In particular, Business and Professions Code 4324 makes it a crime for a person to do any of the following:

• forge or alter a prescription,
• sign someone else’s name (whether real or fictitious) on a prescription, or
• possess drugs obtained with a forged prescription.¹⁰

BPC 4324 is a California “wobbler” offense, meaning it can be charged as a misdemeanor or a felony.

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 $1,000.¹¹

If charged as a felony, the penalties include:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.¹²

For further help…

If you or someone you know has been accused of a crime under Business and Professions Code 725(b) BPC, we invite you to contact us for a free consultation. We can be reached 24/7.

Legal References:

1. California Business and Professions Code 725(b) BPC.
2. People v. McKay (1979), 97 Cal. App. 3d Supp. 59.
3. See same.
4. California Business and Professions Code 725(b) BPC.
5. California Business and Professions Code 4323 BPC. This code section states: “Every person who, in order to obtain any drug, falsely represents himself or herself to be a physician or other person who can lawfully prescribe the drug, or falsely represents that he or she is acting on behalf of a person who can lawfully prescribe the drug, in a telephone or electronic communication with a pharmacist, shall be punished by imprisonment in the county jail for not more than one year.”
6. See same.
7. See same. See also Business and Professions Code 25617 BPC.
8. California Health and Safety Code 11153 HSC.
9. See same.
10. California Business and Professions Code 4324 BPC.
11. See same.
12. See same.