Health & Safety Code § 11154 HS – Prescribing a Controlled Substance Without Treatment

California Health and Safety Code § 11154 HS prohibits physicians from prescribing a controlled substance to any person who is not under their treatment. Prosecutors can charge this as a misdemeanor or a felony, and the penalty is up to three years in jail or prison.

This section is often charged together with Business & Professions Code 725(b) – Excessive prescribing of drugs.

The language of the statute reads:

11154. (a)  Except in the regular practice of his or her profession, no person shall knowingly prescribe, administer, dispense, or furnish a controlled substance to or for any person or animal which is not under his or her treatment for a pathology or condition other than addiction to a controlled substance, except as provided in this division.

(b)  No person shall knowingly solicit, direct, induce, aid, or encourage a practitioner authorized to write a prescription to unlawfully prescribe, administer, dispense, or furnish a controlled substance.

A controlled substance is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States “Controlled Substances Act”.

Examples

• Dr. Cruz prescribes his sister with painkillers for her back pain, even though Dr. Cruz never medically examines her.
• Dr. Henderson has a website that advertises he can treat Lyme disease with certain controlled substances. He writes prescriptions for these drugs to people that email him, even though Dr. Henderson never meets them or treats them.
• Mark has met Dr. Mathews on a few occasions at a book club. Mark mentions that he is soon undergoing a minor knee procedure and asks for some Vicodin. Dr. Mathews provides a prescription despite never verifying the operation or examining Mark’s knee.

Defenses

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

• Prescribed a controlled substance on accident;
• Provided an examination and had a medical basis for the prescription; and,
• Was entrapped.

Penalties

A violation of 11154 HS is a type of wobbler offense, meaning that it can be punished as either a California misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by:

• Imprisonment in a county jail for up to one year; and/or,
• A fine of up to $20,000.

If charged as a felony, the crime is punishable by imprisonment in a county jail for a term of:

• 16 months;
• Two years; or,
• Three years.

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

• 1. The Legal Definition of Prescribing a Controlled Substance Without Treatment
  • 2. Legal Defenses to HS 11154(a) Violations
  • 2.1 Accident
  • 2.2 Examination and medical basis for the prescription
  • 2.3 Entrapment
• 3. Penalties, Punishment, and Sentencing
• 4. Related Offenses
  • 4.1 Prescribing a Controlled Substance Without a Medical Purpose – HS 11153
  • 4.2 Prescribing a Controlled Substance to an Addict – HS 11156
  • 4.3 Counter fitting a Prescription Blank – HS 11162.5

1. The Legal Definition of Prescribing a Controlled Substance Without Treatment

A prosecutor must prove three elements to show that a person is guilty under HS 11154(a). These include proving that:

1. The defendant is a licensed medical practitioner;
2. The defendant prescribed or administered a controlled substance to a person; and,
3. The defendant was not treating the recipient of the drug for a legitimate medical condition.¹

Please note that HS 11154(a) does allow for a practitioner to prescribe a controlled substance to a person for drug addition, even if no treatment is provided.²

The main focus in these cases is the act of prescribing. The offense may be committed without the use of a written prescription, as where a doctor in a hospital may prescribe or order a narcotic for a patient.³

A physician may also violate Health and Safety Code 11154(a) by writing a prescription for a non-existent person.⁴

2. Legal Defenses

A person accused under this section 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 raise a defense on his behalf.

Three common defenses are:

1. Accident;
2. Examination and medical basis for a prescription; and/or,
3. Entrapment.

2.1. Accident

An accident is a legal defense in which a defendant asserts he did not do a criminal act on purpose: “It was an accident.” The defense is successful when a defendant shows that:

• He had no criminal intent to do harm;
• He was not acting negligently; and,
• He was engaged in lawful conduct at the time of the accident.

A defendant, therefore, may challenge an accusation if he can show that he prescribed a controlled substance, without treatment, on accident. Please note though that the physician may be subject to California medical malpractice liability for accidentally prescribing the wrong drug.

2.2. Examination and Medical Basis for Prescription

Recall that a prosecutor must show three elements to prove that a practitioner is guilty under Health and Safety Code 11154(a) (see 1 above). Thus, a strong defense is to demonstrate that the prosecutor cannot prove the elements of the crime. This is typically accomplished when a defendant shows that he:

• Prescribed a controlled substance;
• Did so after a thorough examination of the patient; and,
• Had a medical basis for the prescription.

2.3. Entrapment

In many of these cases, physicians are often arrested and accused after an undercover officer acts as a patient and secures a prescription, with no treatment given. The accusation, though, will fail if the officer lured the physician into committing the crime.

This 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

Under Health and Safety Code 11154(a), the offense of prescribing a controlled substance without treatment is a wobbler offense. This means it can be punished as either a California misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by:

• Imprisonment in a county jail for up to one year; and/or,
• A fine of up to $20,000.⁵

If charged as a felony, the crime is punishable by imprisonment in a county jail for a term of:

• 16 months;
• Two years; or,
• Three years.⁶

4. Related Offenses

There are three crimes related to the prescription of a controlled substance without treatment. These are:

1. Prescribing a controlled substance without a medical purpose – HS 11153
2. Prescribing a controlled substance to an addict – HS 11156
3. Counter fitting a prescription blank – HS 11162.5

4.1. Prescribing a Controlled Substance Without a Medical Purpose – HS 11153

Violations of California Health and Safety Code 11153 HS are sometimes referred to as “prescription fraud.”

Prescription fraud, under HS 11153, is the act of knowingly writing a prescription that is not for a legitimate medical purpose or is outside the usual course of treatment. Please note that this crime can only be committed by someone with the authority to prescribe drugs (for example, a doctor or nurse practitioner).⁷

Also, under HS 11153, it does not matter whether the person receiving the prescription is an addict or wants a drug for some other reason (for example, to sell it, or use it to enhance academic or athletic performance).⁸

The crime of prescribing a controlled substance without a medical purpose is a wobbler offense. The crime can be charged as either a misdemeanor or a felony.

The maximum jail sentence for the crime is:

• One year, if charged as a misdemeanor; or,
• Three years, if charged as a felony.

4.2. Prescribing a Controlled Substance to an Addict – HS 11156

Health and Safety Code 11156 HS makes it a crime for a medical practitioner to prescribe a controlled substance to an addict.

Please note that the crime is also committed via the administration or dispensing of a controlled substance.⁹

As with HS 11153 violations, violations of HS 11156 are wobbler offenses, leading to either misdemeanor or felony charges.

The maximum jail sentence for the crime is:

• One year, if charged as a misdemeanor; or,
• Three years, if charged as a felony.

4.3. Counter fitting a Prescription Blank – HS 11162.5

Under Health and Safety Code 11162.5 HS, it is a crime if a person:

1. Counterfeits a prescription pad; and/or,
2. Knowingly possesses a counterfeited prescription pad.¹⁰

In these cases, offenders try to use counterfeit prescription pads to convince pharmacists to fill prescriptions for controlled substances. Offenders also try to sell the fake pads to others.

Violations of HS 11162.5 are charged as felonies if a person counterfeits a prescription pad or knowingly possesses more than three counterfeited pads. The offense is punishable by up to three years in a county jail.¹¹

Violations of HS 11162.5 are charged as misdemeanors if the defendant possesses three or fewer counterfeited prescription pads. The offense is punishable by:

• Imprisonment in a county jail for up to six months; and/or,
• A fine of up to $1,000.¹²

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