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

California Health and Safety Code 11368 HS makes it a criminal offense to

1. forge or alter a prescription for narcotic drugs,
2. use a prescription with a forged signature to obtain or try to obtain narcotic drugs, or
3. possess narcotic drugs which were obtained with a forged prescription. ¹

Health and Safety Code 11368 is similar to Business and Professions Code 4324 BP, forging or altering a prescription.² However, Section 11368 is a more serious crime. It can be charged when the prescription is for a narcotic drug, such as:

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

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.

Penalties under Health and Safety Code 11368 HS

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

As a California misdemeanor, it can be punished by:

• between six months and one year in county jail, and/or
• a fine of up to $1,000.⁴

If charged as a California felony, however, it can be punished by:

• 16 months, or two or three years in California state prison.⁵

Defenses to Health and Safety Code 11368 HS

Possible legal defenses to charges related to narcotic drug prescription forgeries include (but are not limited to):

• Your prescription was legitimate,
• You didn’t know the prescription was forged or altered,
• You had a forged prescription, but you didn’t try to use it,
• You didn’t know the drugs you had were obtained by a forged/altered prescription,
• You didn’t know the drugs were there, or
• The drugs were discovered in violation of California search and seizure laws.

California law is strict when it comes to the unauthorized use of narcotic drugs. Federal law is even stricter.

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 does Health and Safety Code 11368 HS prohibit?
  • 1.1. The legal definition of “narcotic drug”
  • 1.2. The legal definition of “prescription”
  • 1.3. The legal definition of “utter”
  • 1.4. The legal definition of “possess”
    • 1.4.1. “Actual” possession
    • 1.4.2. “Constructive” possession
    • 1.4.3. “Joint” possession
• 2. Elements of the Crime of Health and Safety Code 11368
  • 2.1. You forged or altered, or used a forged, prescription
  • 2.2. You possessed narcotics drugs obtained with a false prescription
  • 2.3. Proving knowledge under Health and Safety Code 11368
• 3. Penalties under Health and Safety Code 11368 HS
• 4. Defenses to Health and Safety Code 1368 HS
• 5. Federal laws relating to prescriptions for narcotic drugs
  • 5.1. The Federal Controlled Substances Act – 21 USC 843
  • 5.2. Narcotic drug crimes and immigration
• 6. Related California offenses
  • 6.1. Health & Safety Code 11173 & 11153 HS — doctor shopping / prescription fraud
  • 6.2. Health and Safety Code 11350 HS – possession of a controlled substance
  • 6.3. Business and Professions Code 4324 BP – forging/altering a prescription
  • 6.4. Health and Safety Code 11156 HS – prescribing controlled substances to an addict

1. What does Health and Safety Code 11368 HS prohibit?

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.⁶

1.1. The legal definition of “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.⁷

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

• Heroin,
• Cocaine,
• Opium,
• Morphine,
• Codeine,
• Demerol,
• Cocaine,
• Fentanyl, and
• Acetyl fentanyl.⁸

1.2. The legal definition of “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).⁹

1.3. The legal definition of “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.¹⁰

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.

1.4. The legal definition of “possess”

There are two main types of possession under California law:

1. “actual” and
2. “constructive possession.

Two or more people may actually or constructively possess something at the same time.¹¹ When this happens, it is known as “joint” possession.

1.4.1. “Actual” possession

You have “actual” possession of a narcotic drug when you are holding or touching it, or you have immediate access to it.  This could mean it is somewhere on your body, or in something you are holding or wearing.

Example: Vera has a bottle of Demerol in her purse.  While she is holding her purse, or it is sitting right beside her, she has “actual” possession of the Demerol.

1.4.2. “Constructive” possession

You have “constructive” possession of something when you have the right to control it – even if you can’t immediately access it.¹² It could be in your house, office, or car, or even in the care of someone else.

Example: While Vera is at work, she has “constructive” possession of any Demerol in her house. Even though she doesn’t have immediate access to the drugs, she has the right to control them.

You might also have constructive possession of a narcotic drug if you have the right to control it through another person, known legally as your “agent.”¹³

Example: Vera gives Edward $200 and asks him to buy some Demerol from a guy they know who forges prescriptions. As soon as Edward takes possession of the Demerol for Vera, Vera has constructive possession of the drugs. Even though Edward currently has the drugs, they are hers.

However, 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.¹⁴

1.4.3. “Joint” possession

Two or more people can share actual or constructive possession of narcotic drugs.  When they do, it is called “joint” possession.¹⁵

Example: Vera is sharing some of her Demerol with Edward, who is her live-in boyfriend. While Vera and Edward are taking the Demerol, they both  jointly and actually possess it – even though it belongs to Vera.

Alternatively, Vera might have stored the Demerol in the cabinet of the bathroom that she and Edward share. Since they both have control of the bathroom, they have joint constructive possession of the Demerol.

2. Elements of the Crime of Health and Safety Code 11368

2.1. You forged or altered, or used a forged, prescription

When the charge under California Health and Safety Code 11368 is that you forged or altered — or used a forged or altered — prescription, the prosecution must show that:

• 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.¹⁶

2.2. You possessed narcotics drugs obtained with a false prescription

If the charge is that you possessed a narcotic drug obtained with a false prescription, the prosecutor must prove that:

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.¹⁷

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.¹⁸

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.¹⁹

Example: Benjamin goes to see his dealer and asks for something that will bring him “way down.” His dealer gives him some pills. He tells Benjamin they are only supposed to be used in a hospital and they are “wicked illegal.”

Benjamin buys them and puts them in his pocket. Even though Benjamin doesn’t know exactly what they are, he knows he has them and he has some idea of their nature. He may be guilty, therefore, of possessing a narcotic drug.

2.3. 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 pain killers 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.²⁰

3. Penalties under Health and Safety Code 11368 HS

California Health and Safety Code 11368 is a California “wobbler” offense. 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.²¹

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.²²

If the judge grants you probation, you may spend little to no time in jail or prison. But you will be under certain conditions for a period of several years (usually three, but possibly as many as five). During this time you will be subject to certain conditions of probation, which may 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 to Health and Safety Code 1368 HS

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.

Example: Argus goes on Workers Comp for a sprained wrist. His employer’s insurance company sends him to a doctor who the police suspect of writing fake prescriptions. Argus gets arrested when he tries to use the prescription for Oxycontin the doctor writes him. However, since the prescription was legitimate, the prosecutor drops the charges.

2. You didn’t know the prescription was forged or altered.

Example: Brigitte’s roommate asks Brigitte to pick up a prescription for her on her way home from work. The prescription has been altered to increase the quantity of pills from 10 to 40. However, since the roommate did this before she gave the prescription to Brigitte and she didn’t tell her, Brigitte has not violated Health and Safety Code 11368 HS.

3. You had a forged prescription, but you didn’t try to use it.

Example: Estelle buys a forged prescription for hydrocodone from a schoolmate. She is too scared, however, to use it. She leaves it in her locker at school. It is found by a school employee, who calls the police. Even though Alice has a forged prescription, since she never tried to use it she isn’t guilty under Health and Safety Code 11368 HS.

4. You didn’t know the drugs you had were obtained with a forged or altered prescription.

Example: Ingrid buys some Demerol from a friend who says they were left over from her mother’s surgery. In fact, the friend altered her mother’s prescription to add extra pills. Since Ingrid didn’t know this, however, she isn’t guilty of possessing drugs obtained with an altered prescription.

5. You didn’t know the drugs were there.

Example: Graham, a teenager, is stopped by the police on suspicion of burglarizing a dental clinic with his brother. When the police search him, they find several bottles of cocaine hydrochloride. But Graham was just hanging out with his older brother, who is the one that did the burglary. When the police learn that Graham’s brother hid the drugs in Graham’s backpack, they drop the charges against Graham.

6. The drugs were found during an illegal search.

Example: Hillary is pulled over after making an illegal lane change. Although Hillary is polite to the officer and does not appear intoxicated, the officer asks her to take a preliminary alcohol screening (“PAS”) breath test. Hillary refuses. The officer orders Hillary out of the car and searches her. He finds several boxes of Fentanyl patches in her purse and arrests her for violating Health and Safety Code 11368. However, since he had no probable cause for believing Hillary had violated any law, his search of her was illegal. Evidence of the Fentanyl should be thrown out.

5. Federal laws relating to prescriptions for narcotic drugs

5.1. 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.²³

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.²⁴

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.²⁵

For subsequent offenses, violators face:

• up to eight years in federal prison, and
• a fine of up to $250,000.²⁶

5.2. 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.²⁷

Even attempting to violate a California law relating to narcotic drugs is grounds for deportation.²⁸ Accordingly, if you are an undocumented immigrant who is arrested under Health and Safety Code 11368, we recommended you call an experienced lawyer as soon as possible.

6. Related California offenses

6.1. Health & Safety Code 11173 HS — doctor shopping / prescription fraud

Health and Safety Code 11173 HS – obtaining a prescription by fraud (California doctor shopping law) is a broader crime than Health and Safety Code 11368. It applies not just to narcotics, but to all controlled substances.

Under Health and Safety Code 11173, it is a crime to obtain (or try to obtain) a controlled substance through:

• fraud,
• deceit,
• misrepresentation,
• subterfuge,
• concealment of a material fact,
• false statements in a prescription or report,
• pretending to be a health care professional, or
• affixing a false or forged label to a package containing controlled substances.²⁹

One type of fraud commonly charged under Health and Safety Code 11173 is “doctor shopping.” This is often referred to as “prescription fraud” or “RX fraud.”

Doctor shopping involves more than one provider and pharmacy. It happens when a doctor gives someone a prescription for a controlled substance, not knowing that another doctor has already prescribed it. The prescriptions are then filled at different pharmacies, with each not knowing about the others.

California Health and Safety Code 11173 is a California wobbler offense.

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

• up to one year in county jail, and/or
• a fine of up to $1,000.³⁰

As a felony, Health and Safety Code 11173 HS carries a possible sentence of:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.³¹

6.2. Health and Safety Code 11350 HS – possession of a controlled substance

California Health and Safety Code 11350 HS prohibits possession of a controlled substance.

For purposes of Health and Safety Code 11350 HS, a controlled substance includes both:

• street drugs, and
• prescription drugs obtained without a valid prescription.³²

Such drugs include (but are not limited to):

• heroin and other opiates,
• cocaine and other coca leaf derivatives,
• mescaline,
• peyote, and
• narcotic painkillers (such as Oxycontin and Vicodin).³³

With one exception, possessing a controlled substance is a felony. The punishment is:

• 16 months, or two or three years in county jail, or
• probation with mandatory community service or a fine of at least $1,000.³⁴

The exception is unlawful possession of GHB, which is a California wobbler. Instead of the felony punishment set forth above, it can be punished as a misdemeanor, by up to one year in county jail.³⁵

6.3. Business and Professions Code 4324 BP – forging/altering a prescription

Under California Business and Professions Code 4324 BP, it is illegal to:

• forge or alter a prescription,
• sign someone else’s name (whether real or fictitious) on a prescription, or
• possess drugs that were obtained using a forged prescription.³⁶

Business and Professions Code 4324 is a California “wobbler” offense.

As a misdemeanor, it carries a possible sentence of:

• up to one year in county jail, and/or
• a fine of up to $1,000.³⁷

As a felony, it can be punished by:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.³⁸

6.4. Health and Safety Code 11156 HS – prescribing controlled substances to an addict

Doctors, nurses, pharmacists and other medical professionals are sometimes charged with the crime of Health & Safety Code 11156 HS prescribing controlled substances to an addict.

This offense occurs whenever someone prescribes, dispenses or administers a controlled substance to someone who is a drug addict. It is a “wobbler” with a potential misdemeanor jail sentence of up to one year, a potential felony jail sentence of 16 months or two or three years, and a potential fine of up to $20,000.³⁹

Contact us for help…

For more information about California drug laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don’t hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada drug laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

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