Health & Safety Code 11162.5 HS – Counterfeiting a Prescription Blank

Health and Safety Code 11162.5 HS is the California statute governing fake prescription blanks in the context of controlled substances. The statute makes it a crime for a person to counterfeit a prescription blank for a controlled substance, or, to knowingly possess one.

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 highlight the following in this article:

• 1. The Legal Definition of Counterfeiting and Possessing a Counterfeited Prescription Blank
• 2. Legal Defenses to Violations
  • 2.1. No Intent to Deceive or Defraud
  • 2.2. No Knowledge
  • 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 Without Treatment – HS 11156
  • 4.3. Prescribing a Controlled Substance to an Addict – HS 11156

1. The Legal Definition of Counterfeiting and Possessing a Counterfeited 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:

1. Counterfeit one of these forms; or,
2. 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. 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. No intent to deceive or defraud;
2. No knowledge; and/or,
3. Entrapment.

2.1. No Intent to Deceive or Defraud

Recall that counterfeiting means to both:

1. Exactly duplicate an object; and,
2. 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. Penalties, Punishment, and Sentencing

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:

1. Prescribing a controlled substance without a medical purpose – HS 11153
2. Prescribing a controlled substance without treatment – HS 11154(a)
3. 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

California Health and Safety Code 11156 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.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.

Were you accused of counterfeiting a prescription blank, or possessing a counterfeited prescription blank, in California? Call us for 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 at 855-LAWFIRM.

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