Health & Safety Code § 11368 HS – Forging or Altering a Prescription

California Health and Safety Code § 11368 HS makes it a criminal offense to forge or alter a narcotic drug prescription, use a prescription with a forged signature to obtain (or try to obtain) narcotics, or possess narcotics obtained with a forged prescription.

Violating HS 11368 can be a misdemeanor carrying up to six months in jail and/or $1,000 or a felony carrying 16 months, 2 years, or 3 years in prison.

The language of the code section reads as follows:

HS 11386. Every person who forges or alters a prescription or who issues or utters an altered prescription, or who issues or utters a prescription bearing a forged or fictitious signature for any narcotic drug, or who obtains any narcotic drug by any forged, fictitious, or altered prescription, or who has in possession any narcotic drug secured by a forged, fictitious, or altered prescription, shall be punished by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison.

Examples

• Jerry steals a prescription pad from his dentist. He writes himself a prescription for codeine, and signs the dentist’s name.
• Olivia’s doctor writes her a prescription for 6 tablets of Demerol. Janine adds a “0” to the prescription so that it says “60.”
• Patrick buys Fentanyl (a powerful pain reliever) from someone he knows has obtained it with a forged prescription.

Our attorneys include former prosecutors and cops. We understand the relationship between the many California and federal laws relating to the possession of narcotic drugs.

To help you better understand the laws against obtaining narcotics with a forged or altered prescription, our California criminal defense attorneys discuss the following, below:

• 1. What is HS 11368?
• 2. Elements of the Crime
• 3. Penalties
• 4. Defenses
• 5. Federal Laws
• 6. Related Offenses
• Additional Reading

1. What is HS 11368?

California Health and Safety Code 11368 HS makes it a crime to:

• Forge, alter, issue, or utter an altered prescription for a narcotic drug;
• Issue or utter a narcotic drug prescription bearing a forged or fictitious signature; or
• Obtain or possess a narcotic drug as the result of a forged, fictitious, or altered prescription.¹

These terms have specific meanings, as discussed below.

“Narcotic Drug”

California Health and Safety Code 11019 HS defines “narcotic drug” to include

• Opiates,
• Cocaine and coca leaf derivatives, and
• Certain other drugs commonly abused by addicts.²

Drugs that meet this description include (but are not limited to):

• Heroin,
• Cocaine,
• Opium,
• Morphine,
• Codeine,
• Demerol,
• Cocaine,
• Fentanyl, and
• Acetyl fentanyl.³

“Prescription”

California Health and Safety Code 11027 HS defines “prescription” as an order for a controlled substance given by the prescriber directly to the patient or to a furnisher (such as a pharmacy):

• Orally,
• In writing, or
• By electronic transmission (by either computer or fax).⁴

“Utter”

Under California law, you “utter” a prescription when:

1. You use, or attempt to use, a forged or altered prescription, and
2. You represent — through your words or conduct — that it is genuine.⁵

Example: After Zach has surgery, his doctor gives him a prescription for antibiotics and Vicodin. Zach writes in an additional prescription for Oxycontin. When the pharmacist notes that this is a lot of pain medication, Zach innocently shrugs.

“Possess”

There are two main types of possession under California drug law:

1. “Actual possession,” which is physically carrying the drugs on your person or having immediate access to them, or
2. “Constructive possession,” which is having control over the drugs, such as by keeping them in your home, car, a safe, or with your agent.

Two or more people may actually or constructively possess something at the same time.⁶ When this happens, it is known as “joint” possession.

Note that merely agreeing to buy a narcotic drug does not give you control over it. You, or someone acting on your behalf, must actually take possession or exert the right to control them in some other way.⁷

2. Elements of the Crime

You Forged or Altered, or Used a Forged, Prescription

When the charge under HS 11368 is that you forged or altered — or used a forged or altered — prescription, the prosecution must prove beyond a reasonable doubt the following elements of the jury instructions:

• 1. You:
  • forged or altered a prescription, OR
  • gave someone a prescription that was altered or had a false or forged signature, OR
  • used (or tried to use) a forged/altered prescription to obtain drugs; AND
• 2. The prescription was for a narcotic drug; AND
• 3. If someone else forged or altered the prescription, you knew about it.⁸

You Possessed Narcotics Drugs Obtained with a False Prescription

If the charge under HS 11368 is that you possessed a narcotic drug obtained with a false prescription, the prosecutor must prove beyond a reasonable doubt the following elements of the jury instructions:

1. You obtained or possessed a narcotic drug;
2. You knew of its presence;
3. You knew of the substance’s nature or character as a narcotic drug;
4. The narcotic drug was in a usable amount;
5. The narcotic drug was obtained by using a forged, fictitious or altered prescription; AND
6. You knew that the narcotic was so obtained.⁹

There is a “usable amount” of a narcotic if there is enough to be used by someone as a drug. It does not have to be enough to get a person high.¹⁰

It is unnecessary for you to know the name of the drug you possessed, or even what it does. It is enough that you knew that it was a narcotic drug of some kind.¹¹

Proving Knowledge under Health and Safety Code 11368

When an element of Health and Safety Code 11368 requires proof of what you knew, the prosecutor can show it by:

• Your admissions or statements to law enforcement,
• Your statements to other people (witnesses),
• Evidence of prior crimes that are similar in nature, or
• Circumstantial evidence.

Example: Randall is charged with possessing morphine obtained with a forged prescription. He admits that the pills in question were his, but says he thought they were over-the-counter painkillers from Canada.

However, Randall has a previous conviction involving narcotic drugs. The prosecution is allowed to introduce evidence of the prior conviction and question him about the kind of drugs that were involved.¹²

3. Penalties

California Health and Safety Code 11368 is a California “wobbler” offense. This means it can be charged as a misdemeanor or a felony, at the prosecutor’s discretion.

If charged as a misdemeanor, it can be punished by:

• Between six months and one year in county jail,
• A fine of up to $1,000, and/or
• California misdemeanor (“summary” or “informal”) probation.¹³

As a felony, however, it can be punished by:

• 16 months, or two or three years in California state prison, or
• California felony (“formal”) probation.¹⁴

Probation

If the judge grants you probation, you may spend little to no time in jail or prison. However, you will be under certain conditions for a period of years (usually three, but as many as five). These conditions typically include:

• Drug counseling or treatment,
• Payment of a fine,
• Community service or labor (such as Caltrans roadside work),
• Meetings with a probation officer (for felony probation), and/or
• The requirement you not use drugs or break other laws.

If you fail to comply with any of these conditions, the judge has the option to send you to jail or prison to complete your full sentence.

4. Defenses

There are many possible defenses to charges under California Health and Safety Code 11368 HS. Your California criminal defense attorney can discuss with you which are applicable to your case.

Some of the applicable defenses may include (but are not limited to):

1. Your prescription was legitimate,
2. You did not know the prescription was forged or altered,
3. You had a forged prescription, but you did not try to use it,
4. You did not know the drugs you had were obtained by a forged/altered prescription,
5. You did not know the drugs were there (“no possession”), or
6. The drugs were discovered in violation of California search and seizure laws.

5. Federal Laws

The Federal Controlled Substances Act – 21 USC 843

21 USC 843(a)(3) makes it a crime to acquire or gain possession of a controlled substance through:

• Misrepresentation,
• Fraud,
• Forgery,
• Deception, or
• Subterfuge.¹⁵

The federal government normally leaves small-time violations of drug laws to local California police agencies to enforce. However, federal law is often used to go after:

• Doctors who write large numbers of false prescriptions, and
• Drug traffickers who deal in large quantities of drugs obtained by forged prescriptions.¹⁶

Federal law also applies to federally owned land in California, such as:

• Post offices,
• Federal buildings,
• Federal courthouses, and
• National parks.

Violation of 21 USC 843 is a felony. A first offense can be punished by up to four years in federal prison.¹⁷ For subsequent offenses, violators face:

• Up to eight years in federal prison, and
• A fine of up to $250,000.¹⁸

Narcotic Drug Crimes and Immigration

Under the following circumstances, California law enforcement officials are required to notify U.S. Immigrations and Customs Enforcement:

1. You are arrested for violating California Health and Safety Code 11368 HS, AND
2. Law enforcement has a reason to believe you may not be a citizen of the United States.¹⁹

Even attempting to violate a California law relating to narcotic drugs is grounds for deportation.²⁰

6. Related Offenses

• Business and Professions Code 4324 BP – Forging or Altering a Prescription
• Health and Safety Code 11350 HS – Possession of a controlled substance
• Health & Safety Code 11156 HS – Prescribing controlled substances to an addict
• Health and Safety Code 11173 HS – Obtaining a prescription by fraud (doctor shopping)

Additional Reading

For more information, see these scholarly articles:

• Role of Litigation in the Fight against Prescription Drug Abuse – West Virginia Law Review.
• Doctoring Prescriptions: Federal Barriers to Combating Prescription Drug Fraud against On-Line Pharmacies in Washington – Washington Law Review.
• The Pharmacist’s Responsibility to Evaluate Suspicions Prescriptions – Food Drug Cosmetic Law Journal.
• Prescription Opioid Forgery: Reporting to Law Enforcement and Protection of Medical Information – Pain Medicine.
• What you can do about forged prescriptions – Medical Chronicle.

---