Health and Safety Code 11173 HS – Using Fraud to Get a Prescribed Controlled Substance

California Health and Safety Code 11173 HS makes it a crime to use fraud or deception to obtain (or attempt to obtain) a controlled substance by way of a prescription. Prosecutors can charge this section as a misdemeanor or a felony, and a conviction carries up to 3 years in jail.

The offense is often referred to as

• “prescription fraud” or
• “doctor shopping.”

The language of the statute reads that:

11173. (a)  No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation , or subterfuge; or (2) by the concealment of a material fact.

(b)  No person shall make a false statement in any prescription, order, report, or record, required by this division.

(c)  No person shall, for the purpose of obtaining controlled substances, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant, or other authorized person.

(d)  No person shall affix any false or forged label to a package or receptacle containing controlled substances.

Examples of criminal acts under this code section include:

• Louis sees a doctor and pretends to be suffering from chronic back pain just so he can get a prescription for Vicodin.
• John’s girlfriend is addicted to codeine, so he goes to a doctor and fakes a knee injury in order to get a codeine prescription.
• Juanita is addicted to a certain painkiller, so she regularly visits her local ER, fakes a “work injury,” and gets the painkiller administered to her via an IV.

Defenses

Luckily, there are several legal defenses that you can raise if accused. These include showing that you:

• did not use fraud,
• were entrapped, and/or
• were arrested after a coerced confession.

Penalties

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

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.

As a felony, the offense is punishable by:

• imprisonment in the county jail for up to three years, and/or
• a maximum fine of $20,000.

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

• 1. What is prohibited under Health and Safety Code 11173 HS?
• 2. Are there legal defenses?
  • 2.1. No fraud
  • 2.2. Entrapment
  • 2.3. Coerced confession
• 3. What are the penalties?
• 4. Are there related crimes?
  • 4.1. Prescription fraud by medical professionals – HSC 11153
  • 4.2. Prescribing a controlled substance without treatment – HSC 11154a
  • 4.3. Counterfeiting a prescription blank – HSC 11162.5

1. What is prohibited under Health and Safety Code 11173 HS?

Health and Safety Code 11173 is the California statute that makes it a crime for you to use fraud to get, or attempt to get, a controlled substance.¹

You this statute if you obtain a controlled substance, or a prescription for the same, through:

• fraud, deceit, or misrepresentation, or
• the concealment of a material fact.²

A “controlled substance” means any substance listed on the five classification schedules of federal and California drug laws.³

Some prescription drugs that are often involved in prescription fraud cases include:

• Hydrocodone (Vicodin),
• Oxycodone,
• Xanax, and
• Valium.

“Fraud” is the act of knowingly misrepresenting the truth, or concealing a material fact, in order to get another person to act in a way that harms his/her interests.⁴

Please note that police officers are free from prosecution under this statute if they are lawfully engaged in certain investigations.⁵

2. Are there legal defenses?

A person accused of violating this statute can raise a legal defense. A good defense can work to reduce or even dismiss a charge.

Three common defenses to alleged violations of this statute are:

1. no fraud,
2. entrapment, and/or
3. coerced confession.

2.1. No fraud

Please note that this section only applies if you use fraud to obtain a controlled substance. Thus, a solid legal defense to show that, while you may have received a controlled substance, you did not use fraud to get it (for example, perhaps you had a real injury or illness).

2.2. Entrapment

In many HSC 11173 cases, suspects are often arrested and accused after an undercover sting or operation. But such charges must get dropped if the sting officers 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.

2.3. Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If you can show that the police coerced you into a confession, then:

1. the judge may exclude the confession from evidence, or
2. the case could get dropped altogether if you got pressured into confessing to a crime he didn’t commit.

3. What are the penalties?

A violation of Health and Safety Code 11173 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

As a misdemeanor, the crime is punishable by:

• imprisonment in the county jail for up to one year, and/or
• a maximum fine of $1,000.⁶

As a felony, the offense is punishable by:

• imprisonment in the county jail for up to three years, and/or
• a maximum fine of $20,000.⁷

4. Are there related crimes?

There are three crimes related to using fraud to get a controlled substance. These are:

1. prescription fraud by medical professionals – HSC 11153
2. prescribing a controlled substance without treatment – HSC 11154a
3. counterfeiting a prescription blank – HSC 11162.5

4.1. Prescription fraud by medical professionals – HSC 11153

Medical professionals commit prescription fraud, under Health and Safety Code 11153 HS, when they write 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 HSC 11153 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

A misdemeanor conviction results in possible imprisonment in the county jail for up to one year.

A felony conviction can lean to a county jail sentence of up to three years.

4.2. Prescribing a controlled substance without treatment – HSC 11154a

Under HS 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

A violation of HSC 11154a is a wobbler offense, meaning 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.¹⁰

If charged as a felony, the offense could lead to a county jail sentence of up to three years.¹¹

4.3. Counterfeiting a prescription blank – HSC 11162.5

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.¹²

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.”

A violation of HSC 11162.5 is a wobbler offense, meaning 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.¹³

If charged as a felony, the offense could lead to a county jail sentence of up to three years.¹⁴

For additional help…

If you or someone you know has been accused of a crime, per Health and Safety Code 11173, we invite you to contact us for a free consultation. We can be reached 24/7.

For similar charges in Colorado, please see our article on Prescription Fraud in Colorado C.R.S. 18-18-415. And for similar charges in Nevada, please see our article on Doctor Shopping & Prescription Fraud under Nevada Law (NRS 453.391 & 453.381 & NRS 453.421).

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