Health and Safety Code 11162.5 HS is the California statute that makes it a crime to make or possess counterfeit prescription blanks for a controlled substance. The offense can be charged as a misdemeanor or a felony and is punishable by up to 3 years in jail or prison.
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 of illegal acts under this section include:
- During a routine doctor’s visit, Michelle steals a prescription pad from the medical office. She later copies it identically and writes herself a prescription for Vicodin.
- Mark is so impressed by Michelle’s work, that he buys a counterfeit pad from her and puts it in his pocket for later use.
- Trying to earn extra money, nurse Carol takes a few prescription blanks from work, copies them exactly, and sells them to others.
Defenses
Luckily, there are several legal defenses that a person can raise if accused of this offense. These include showing that the accused party:
- Did not have an intent to deceive or defraud;
- Did not know he possessed a counterfeited pad; or,
- Was entrapped.
Penalties
A violation of Health and Safety Code 11162.5 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 $1,000.
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 discuss the following in this article:
- 1. Is it a crime to have a counterfeit prescription blank?
- 2. Are there defenses to Health & Safety Code 11161.5 HS?
- 3. What are the penalties?
- 4. Related Offenses
1. Is it a crime to have a counterfeit prescription blank?
California Health and Safety Code 11161.5 states that:
Prescription forms for controlled substance prescriptions shall be obtained from security printers approved by the Department of Justice.1
This section makes it a crime for a person to either:
- Counterfeit one of these forms; or,
- To knowingly possess a counterfeited form.2
“Counterfeit” means to make an exact imitation of something with the intent to deceive or defraud.3
Health and Safety Code 11162.5 specifically uses the term “prescription blank” in its language and not “prescription form.” The terms have the same meaning. They are what a medical practitioner uses when ordering or authorizing a prescription for a controlled substance. Prescription blanks/forms are also referred to as “prescription pads.”
2. Are there defenses to Health & Safety Code 11161.5 HS?
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:
- No intent to deceive or defraud;
- No knowledge; and/or,
- Entrapment.
2.1. No Intent to Deceive or Defraud
Recall that counterfeiting means to both:
- Exactly duplicate an object; and,
- To do so with an intent to deceive or defraud.
The second requirement essentially means a person must intentionally try to trick somebody.
A defense to HS 11162.5, therefore, is for a defendant to show that he never tried to intentionally trick or deceive another person. For example, a defendant could say he counterfeited a prescription form for the sake of art, or, just for the sake of doing it.
2.2. No knowledge
For a person to be guilty of possession under HS 11162.5, he has to knowingly possess a counterfeited prescription blank. This means the defendant must know that a counterfeited prescription pad is on his person or within his control.
Thus, a strong legal defense to a possession charge is for an accused to show that he never knew he had a counterfeited prescription form. For example, if an illegal form is found in a defendant’s backpack, the defendant can try to show that he never knew it was in the bag (e.g., someone put it there or planted it).
2.3. Entrapment
In many of these cases, suspects are often arrested and accused after an undercover officer buys or obtains a counterfeited form from them. Any later charges under HS 11162.5, 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. What are the penalties?
Under Health and Safety Code 11162.5, the offenses of counterfeiting a prescription pad, and knowingly possessing one, are wobbler offenses. This means they can be punished as either a California misdemeanor or a felony.
The section also sets forth two sub-divisions that provide sentencing instructions for violations of the code section.
HS 11162.5(a) applies to the crimes of:
- Counterfeiting prescription blanks, and,
- Knowingly possessing more than three counterfeited prescription blanks.4
Under HS 11162.5(a), these offenses are punishable by imprisonment for up to one year in a county jail, if charged as misdemeanors. If charged as felonies, the crimes are punishable by imprisonment in a county jail for a term of:
- 16 months;
- Two years; or,
- Three years.5
HS 11162.5(b) applies to the specific crime of knowingly possessing three or fewer counterfeited prescription blanks.6 The section states that the crime is a misdemeanor punishable by:
- Imprisonment in a county jail for up to six months; and/or,
- A fine up to $1,000.7
4. Related Offenses
There are particular three crimes related to this section. These are:
- Prescribing a controlled substance without a medical purpose – HS 11153
- Prescribing a controlled substance without treatment – HS 11154(a)
- Prescribing a controlled substance to an addict – HS 11156
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 incidents of “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 (e.g. a doctor or nurse practitioner).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 Without Treatment – HS 11154(a)
Under Health & Safety Code 11154(a), it is a crime for a physician to prescribe a controlled substance to any person that is not under the physician’s treatment.9
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.10
The main focus under these cases is the act of prescribing, and:
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.11
An HS 11154(a) crime is a wobbler offense. 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 $20,000.12
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.13
4.3. Prescribing a Controlled Substance to an Addict – HS 11156
Please note that the crime is also committed via the administration or dispensing of a controlled substance.14
As with the other violations discussed in this article, violations of HS 11156 are wobbler offenses, leading to either misdemeanor or felony charges.
The maximum jail sentence for an HS 11156 crime is:
- One year, if charged as a misdemeanor; or,
- Three years, if charged as a felony.
For additional help…
If you or someone you know has been accused of violating Health and Safety Code 11162.5 HS, we invite you to contact us for a free consultation. We can be reached 24/7.
Legal References:
1. California Health and Safety Code 11161.5(a) HS. The language of the statute states that:
(a) Prescription forms for controlled substance prescriptions shall be obtained from security printers approved by the Department of Justice.
(b) The department may approve security printer applications after the applicant has provided the following information:
(1) Name, address, and telephone number of the applicant.
(2) Policies and procedures of the applicant for verifying the identity of the prescriber ordering controlled substance prescription forms.
(3) Policies and procedures of the applicant for verifying delivery of controlled substance prescription forms to prescribers.
(4) (A) The location, names, and titles of the applicant’s agent for service of process in this state; all principal corporate officers, if any; all managing general partners, if any; and any individual owner, partner, corporate officer, manager, agent, representative, employee, or subcontractor of the applicant who has direct access to, or management or control of, controlled substance prescription forms.
(B) A report containing this information shall be made on an annual basis and within 30 days after any change of office, principal corporate officers, managing general partner, or of any person described in subparagraph (A).
(5) (A) A signed statement indicating whether the applicant, any principal corporate officer, any managing general partner, or any individual owner, partner, corporate officer, manager, agent, representative, employee, or subcontractor of the applicant who has direct access to, or management or control of, controlled substance prescription forms, has ever been convicted of, or pled no contest to, a violation of any law of a foreign country, the United States, or any state, or of any local ordinance.
(B) The department shall provide the applicant and any individual owner, partner, corporate officer, manager, agent, representative, employee, or subcontractor of the applicant who has direct access to, or management or control of, controlled substance prescription forms, with the means and direction to provide fingerprints and related information, in a manner specified by the department, for the purpose of completing state, federal, or foreign criminal background checks.
(C) Any applicant described in subdivision (b) shall submit his or her fingerprint images and related information to the department, for the purpose of the department obtaining information as to the existence and nature of a record of state, federal, or foreign level convictions and state, federal, or foreign level arrests for which the department establishes that the applicant was released on bail or on his or her own recognizance pending trial, as described in subdivision (l) of Section 11105 of the Penal Code. Requests for federal level criminal offender record information received by the department pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the department.
(D) The department shall assess against each security printer applicant a fee determined by the department to be sufficient to cover all processing, maintenance, and investigative costs generated from or associated with completing state, federal, or foreign background checks and inspections of security printers pursuant to this section with respect to that applicant; the fee shall be paid by the applicant at the time he or she submits the security printer application, fingerprints, and related information to the department.
(E) The department shall retain fingerprint impressions and related information for subsequent arrest notification pursuant to Section 11105.2 of the Penal Code for all applicants.
(c) The department may, within 60 calendar days of receipt of the application from the applicant, deny the security printer application.
(d) The department may deny a security printer application on any of the following grounds:
(1) The applicant, any individual owner, partner, corporate officer, manager, agent, representative, employee, or subcontractor for the applicant, who has direct access, management, or control of controlled substance prescription forms, has been convicted of a crime. A conviction within the meaning of this paragraph means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action which a board is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code.
(2) The applicant committed any act involving dishonesty, fraud, or deceit with the intent to substantially benefit himself, herself, or another, or substantially injure another.
(3) The applicant committed any act that would constitute a violation of this division.
(4) The applicant knowingly made a false statement of fact required to be revealed in the application to produce controlled substance prescription forms.
(5) The department determines that the applicant failed to demonstrate adequate security procedures relating to the production and distribution of controlled substance prescription forms.
(6) The department determines that the applicant has submitted an incomplete application.
(7) As a condition for its approval as a security printer, an applicant shall authorize the Department of Justice to make any examination of the books and records of the applicant, or to visit and inspect the applicant during business hours, to the extent deemed necessary by the board or department to properly enforce this section.
(e) An approved applicant shall submit an exemplar of a controlled substance prescription form, with all security features, to the Department of Justice within 30 days of initial production.
(f) The department shall maintain a list of approved security printers and the department shall make this information available to prescribers and other appropriate government agencies, including the Board of Pharmacy.
(g) Before printing any controlled substance prescription forms, a security printer shall verify with the appropriate licensing board that the prescriber possesses a license and current prescribing privileges which permits the prescribing of controlled substances with the federal Drug Enforcement Administration (DEA).
(h) Controlled substance prescription forms shall be provided directly to the prescriber either in person, by certified mail, or by a means that requires a signature signifying receipt of the package and provision of that signature to the security printer. Controlled substance prescription forms provided in person shall be restricted to established customers. Security printers shall obtain a photo identification from the customer and maintain a log of this information. Controlled substance prescription forms shall be shipped only to the prescriber’s address on file and verified with the federal Drug Enforcement Administration or the Medical Board of California.
(i) Security printers shall retain ordering and delivery records in a readily retrievable manner for individual prescribers for three years.
(j) Security printers shall produce ordering and delivery records upon request by an authorized officer of the law as defined in Section 4017 of the Business and Professions Code.
(k) Security printers shall report any theft or loss of controlled substance prescription forms to the Department of Justice via fax or email within 24 hours of the theft or loss.
(l) (1) The department shall impose restrictions, sanctions, or penalties, subject to subdivisions (m) and (n), against security printers who are not in compliance with this division pursuant to regulations implemented pursuant to this division and shall revoke its approval of a security printer for a violation of this division or action that would permit a denial pursuant to subdivision (d) of this section.
(2) When the department revokes its approval, it shall notify the appropriate licensing boards and remove the security printer from the list of approved security printers.
(m) The following violations by security printers shall be punishable pursuant to subdivision (n):
(1) Failure to comply with the Security Printer Guidelines established by the Security Printer Program as a condition of approval.
(2) Failure to take reasonable precautions to prevent any dishonest act or illegal activity related to the access and control of security prescription forms.
(3) Theft or fraudulent use of a prescriber’s identity in order to obtain security prescription forms.
(n) A security printer approved pursuant to subdivision (b) shall be subject to the following penalties for actions leading to the denial of a security printer application specified in subdivision (d) or for a violation specified in subdivision (m):
(1) For a first violation, a fine not to exceed one thousand dollars ($1,000).
(2) For a second or subsequent violation, a fine not to exceed two thousand five hundred dollars ($2,500) for each violation.
(3) For a third or subsequent violation, a filing of an administrative disciplinary action seeking to suspend or revoke security printer approval.
(o) In order to facilitate the standardization of all prescription forms and the serialization of prescription forms with unique identifiers, the Department of Justice may cease issuing new approvals of security printers to the extent necessary to achieve these purposes. The department may, pursuant to regulation, reduce the number of currently approved security printers to no fewer than three vendors. The department shall ensure that any reduction or limitation of approved security printers does not impact the ability of vendors to meet demand for prescription forms.
2. California Health and Safety Code 11162.5 HS.
3. 18A Ca Jur Criminal Law: Crimes Against Property § 449.
4. California Health and Safety Code 11162.5(a) HS.
5. See same.
6. California Health and Safety Code 11162.5(b) HS.
7. See same.
8. California Health and Safety Code 11153 HS.
9. California Health and Safety Code 11154(a) HS.
10. See same.
11. People v. Whitlow (1952) 113 Cal. App. 2d 804.
12. California Health and Safety Code 11371 HS.
13. See same.
14. California Health and Safety Code 11156 HS.