Prescription fraud in California is a crime that can be committed by either patients or doctors. Patients who engage in doctor shopping by committing fraud to obtain a prescription violate Health & Safety Code 11173 HS. Doctors who write illegal prescriptions violate Health & Safety Code 11153 HS.
HS 11173 doctor shopping/prescription fraud occurs when a patient obtains or attempts to obtain a prescription for controlled substances—including painkillers such as hydrocodone (“Vicodin”)—through:
- Fraud, deceit, misrepresentation, or subterfuge; or
- The concealment of a material fact. 1 2 3
HS 11173 states:
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.
HS 11153 prescription fraud is committed by doctors and other medical professionals authorized to write prescriptions.
Medical professionals commit prescription fraud 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.
HS 11153 states:
A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.
Here are some examples of people who could face prosecution for prescription fraud or doctor shopping in California:
- A man with a Vicodin addiction has his girlfriend see a doctor and pretend to be suffering from chronic back pain in order to get a prescription for Vicodin—which she then gives to him.
- An elderly woman develops an addiction to codeine while recovering from surgery; she then makes multiple appointments with several different doctors and obtains prescriptions for more codeine from all of them.
- A doctor develops a reputation among prescription drug addicts for writing prescriptions and refills “no questions asked,” for a flat fee per prescription.
Prescription fraud/doctor shopping—whether by a patient or a medical professional, under HS 11173 or HS 11153—is a wobbler in California law.4
Misdemeanor prescription fraud is punishable by up to one (1) year in county jail. Felony prescription fraud carries a potential jail sentence of sixteen (16) months, two (2) years or three (3) years.6
Plus, a medical professional convicted of HS 11153 prescription fraud is likely to lose their professional license.
Prescription fraud/doctor shopping charges can devastate your life. And these criminal charges often haunt people who are already suffering from medical problems—and sometimes issues with drug dependence as well.
But facing charges does not mean a conviction is certain. We have helped our clients fight HS 11173 or 11153 charges with the following legal defenses:
- You did not use fraud or deceit to obtain a prescription (for HS 11173 charges);
- You did not knowingly write a prescription for a non-legitimate purpose (for HS 11153 charges); and/or
- The legal defense of entrapment.
In order to help you better understand the California crime of prescription fraud, our California prescription fraud defense attorneys will address the following:
- 1. What is the California definition of prescription fraud?
- 2. What can happen if a person is charged with doctor shopping?
- 3. How can a person fight prescription fraud charges?
- 4. Are there other crimes that D.A.s charge in connection with doctor shopping?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
There are two major forms of California prescription fraud: California Health & Safety Code 11173 prescription fraud by patients, and California Health & Safety 11153 prescription fraud by doctors, nurses and other professionals. These sections are often charged together with Business & Professions Code 4323 (making false statements to obtain a drug).
The legal definition of prescription fraud/doctor shopping committed by patients under Health & Safety Code 11173 HS is as follows:
- You either obtained, attempted to obtain, procured the administration or prescription of, or attempted to procure the administration or prescription of, a controlled substance; and
- You did so either by fraud, deceit, misrepresentation or subterfuge, OR by the concealment of a material fact.7
Let’s take a better look at these “elements of the crime” in order to better understand the legal definition of HS 11173 prescription fraud.
Obtain or procure the administration or prescription of
Health & Safety Code 11173 HS makes it a crime to do any of the following:
- Obtain or attempt to obtain a controlled substance;
- Procure or attempt to procure the administration of a controlled substance; or
- Procure or attempt to procure the prescription of a controlled substance.8
This means that you can technically commit this form of prescription fraud even if no prescription is involved or no physical drugs are obtained.
Todd is addicted to the powerful painkiller Dilaudid (hydromorphone).
He frequently goes to his local emergency room claiming that he suffers from chronic severe back pain due to an old work injury—which is not true—so that the staff will administer him this drug through an IV at the hospital.
Todd even sometimes brings fake identification to the ER and gives the staff false names, since he is concerned that they will catch on and stop giving him the drug.
Todd is guilty of prescription fraud for procuring the administration of a controlled substance. (He may also be charged with Penal Code 470b PC possession of a fake ID.)
This also means that you can be convicted of prescription fraud under California Health & Safety Code 11173 HS even if you never actually obtain a drug or a prescription for a drug. All that’s required is that you attempt to obtain a drug or prescription.9
Rebecca is a former heroin addict who gives up drugs when she becomes pregnant.
But then her baby is delivered by Cesarean section, and her recovery is especially painful. She relies on Vicodin to get through the recovery.
Rebecca finds herself becoming addicted to Vicodin. She visits her doctor and falsely claims to be experiencing continuing pain even after her pain has actually ended. But the doctor is skeptical and refuses to write her a prescription.
Rebecca may be guilty of prescription fraud for attempting to get a prescription through deceit—even though she didn’t succeed.
A controlled substance
Some prescription drugs that are often involved in prescription fraud cases include:
- Hydrocodone (Vicodin);
- Adderall; and
Health & Safety Code 11173 HS covers attempts to obtain prescriptions or prescription drugs by any of the following:
- Subterfuge; OR
- Concealment of a material fact.11
“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 their interests.12
In other words, you commit prescription fraud when you lie OR conceal a material fact in order to obtain prescription medication.
Luke is seeing a number of different health care providers after a car accident that left him with multiple injuries. He has received a legitimate prescription for the opioid oxycodone to treat his pain from one of his doctors.
Luke discovers that he can make good money selling his oxycodone pain medication to recreational drug users. So he goes to several other doctors for his pain (which is real) and gets each of them to prescribe him oxycodone from a different pharmacy. He keeps some for himself and sells the rest.
Luke did not actually lie to these doctors—he really does need the oxycodone for his pain. But he fails to inform them of the fact that he was “doctor shopping” to get multiple prescriptions. So he is guilty of prescription fraud. (He also committed the drug crime of selling controlled substances.)
You can also commit HS 11173 prescription fraud by giving a false name or a false address in connection with prescriptions for a controlled substance.13
California Health & Safety Code 11153 HS covers the crime of prescription fraud when it is committed by doctors, nurse practitioners, and other medical professionals.
The legal definition of this form of prescription fraud is knowingly issuing a prescription that is:
- Not for a legitimate medical purpose; and/or
- Outside the usual course of the practitioner’s professional practice.14
This form of prescription fraud can be committed by any medical professional authorized to issue a prescription—including:
- Nurse practitioners; and
Students at competitive high schools in wealthy neighborhoods regularly take drugs like Adderall and Ritalin to help them focus while studying—even though most of these students don’t have any psychiatric condition or learning disability that would warrant a prescription for those drugs.
Klaus is a psychiatrist with an office in one of these wealthy neighborhoods. He regularly sees these students for brief consultations for a high fee.
If students tell them they are stressed out about schoolwork, Klaus will write them a prescription, no questions asked. Klaus is well aware that his patients are just using these drugs as a study aid and not to treat a disease.
Klaus is guilty of HS 11153 prescription fraud by a medical practitioner for writing prescriptions that are not for legitimate medical purposes.
Note that medical professionals can only commit prescription fraud if they act knowingly. If they write a prescription in good faith, believing that it is for a legitimate medical purpose, then they are not guilty of California Health & Safety Code 11153. (However, if they know or have reason to believe that the patient is addicted to the medication, they may still face charges for prescribing controlled substances to an addict under Health & Safety Code 11156 HS.)15
The problem of “reckless prescribing” by physicians and other medical professionals has gotten a lot of attention in the media over the last few years.16 California law enforcement has taken notice of this—and is working to combat the problem through more aggressive enforcement of prescription fraud laws against doctors and nurses.
California prescription fraud—under both Health & Safety Code 11173 and Health & Safety Code 11153—is what is known as a “wobbler” offense.17
This means that the prosecutor may choose to charge it as EITHER a misdemeanor or a felony.18 Prosecutors usually base this decision on:
- The exact nature of the allegations; and
- The defendant’s criminal history.
Misdemeanor prescription fraud/”doctor shopping” carries the following potential penalties:
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).19
Prescription fraud as a felony, under either Health & Safety Code 11173 HS or Health & Safety Code 11153 HS, carries the following potential penalties:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years, served in county jail under California’s realignment program; and/or
- A fine of up to twenty thousand dollars ($20,000).20
Moreover, California prescription drug fraud laws are not covered by California’s drug diversion program or California Proposition 36. This means that these programs—which provide for court-supervised drug treatment instead of a criminal sentence—are not available to people convicted of HS 11173 doctor shopping.21
A California doctor charged with Health & Safety Code 11153 HS prescription fraud naturally needs to be concerned about doctor discipline and possible medical license suspension.
Any criminal conviction for an offense that is “substantially related” to the qualifications, functions, or duties of a physician can trigger professional discipline of doctors in California.22 Prescription fraud almost certainly will be deemed to fall into this category.
The worst-case scenario for doctor discipline for HS 11153 prescription fraud is suspension or revocation of your medical license by the Medical Board of California.
Nurses can also face nurse discipline and license revocation (in some cases) as a result of a prescription fraud conviction.23
If you or a loved one faces accusations of prescription fraud, under Health & Safety Code 11173 or 11153 HS, one of the following legal defenses may be the ticket to a charge reduction of dismissal.
- You did not use fraud or deceit to obtain a prescription;
- You did not knowingly prescribe a controlled substance for a non-legitimate purpose; or
- Police entrapped you.
According to San Jose criminal defense attorney Reve Bautista24:
“Prescription drug fraud cases are some of the most heartbreaking cases I see as a criminal defense lawyer. Very often the defendants are not your typical lawbreakers. Instead, they’re people who suffer from real pain and developed an addiction to pills in the first place because of a doctor’s negligence. Their prescription drug abuse is not their fault.”
Note it may be possible for the defendant’s defense attorneys to persuade the prosecutor to reduce a felony charge down to a misdemeanor charge.
And if a person is under investigation but has not yet been charged, the suspect’s defense attorney can try a pre-court intervention: If the defense attorney’s prefile investigation shows that the state’s evidence is too weak to sustain a conviction, the D.A. may opt not to prosecute at all.
You did not use fraud or deceit to obtain a prescription
It could well be that you have a problem with the abuse of prescription drugs. You may have been obtaining these drugs both to treat pain or another medical condition and to feed the addiction.
But unless you actually lied to—or concealed a material fact from—your doctor or nurse practitioner, you did not commit prescription fraud. It is quite possible that the doctor wrote you the prescription quickly or automatically, without asking many questions.
Unless the prosecutor can prove that you actually behaved with fraudulent intent or in a deceptive fashion, you are not guilty under Health & Safety Code 11173.
You did not knowingly prescribe a controlled substance for a non-legitimate purpose
On the flip side, a patient may have obtained a prescription for a controlled substance that turned out not to serve a legitimate medical purpose—but that does not mean that the practitioner who wrote the prescription committed Health & Safety Code 11153 prescription fraud.
HS 11153 requires that a medical professional knowingly write a prescription that does not serve any legitimate medical purpose.25 But in many cases, the doctor wrote the prescription out of carelessness or because of misrepresentation by the patient. In short, there was “lack of intent” to prescribe the meds for an illegitimate purpose.
In the current rush to crack down on “reckless prescribers,” many doctors and other medical professionals whose specialty involves patients with chronic pain are facing charges of prescription fraud for mere mistakes. But mistakes—even serious ones—are not enough to make one criminally liable.
Police entrapped you
“Entrapment” occurs when a law enforcement officer behaves in an overbearing way—and as a result, lures the defendant into engaging in behavior they otherwise would not have.26
Entrapment can occur when police officers conducting undercover “sting” operations talk you into doing something through:
- Flattery; or
While such cases are probably rare, entrapment could be a viable legal defense in certain cases of HS 11153 prescription fraud by a medical practitioner.
For example, it could be the case that an undercover police department officer offered a ridiculously high fee to a doctor or nurse to write an unnecessary prescription. Perhaps the doctor or nurse was having financial troubles, and the size of the offer was enough to induce them to do something they would not otherwise ever have done.
Forging or altering a prescription HS 11368
Forgery or alteration of a prescription Health & Safety Code 11368 HS occurs when someone:
- Forges or alters a prescription for a narcotic drug, such as changing the quantity;
- Uses a prescription with a forged signature to obtain or try to obtain a narcotic drug; or
- Possesses narcotic drugs that came from a forged prescription.28
It is not uncommon for people with prescription drug addictions to face charges of both HS 11173 and HS 11368.
Forging or altering a prescription is a wobbler. The misdemeanor sentence is at least six (6) months and up to one (1) year in county jail. The felony sentence is sixteen (16) months, two (2) years or three (3) years in state prison.29
Possession of a controlled substance HS 11350
Let’s say police accuse you of lying to obtain a prescription for a controlled substance—and then police find you with the drug in your possession.
If prosecutors initially charge you with Health & Safety Code 11173 HS prescription fraud, you and your criminal defense attorney may want to try to get the D.A. to agree to a charge reduction to Health & Safety Code 11350 HS possession of a controlled substance.
“Simple possession” can be a preferable charge for two reasons. First, it is only a misdemeanor in most cases, punishable by up to one (1) year in county jail.30
Second, unlike prescription fraud, possession of a controlled substance is an offense eligible for deferred entry of judgment (drug diversion) or Proposition 36 drug treatment in lieu of a jail sentence.31
Sale or transportation of a controlled substance HS 11352
It is also common for defendants to face charges of both HS 11173 prescription drug fraud and sale or transportation of a controlled substance under Health & Safety Code 11352 HS.
This might happen if, for example, you face accusations of fraudulently obtaining prescription drugs and then re-selling them for a profit.
Sale or transportation of a controlled substance is a felony in all cases. The potential sentence ranges from three (3) to nine (9) years.32
Driving while addicted to a drug VC 23152(c)
Driving while addicted to a drug, Vehicle Code 23152(c) VC, is an obscure form of California DUI. Defendants who drove a vehicle while addicted to a drug--including prescription drugs--are subject to California DUI penalties--even if they were not under the influence of the drug when they drove.33
Even though this crime is rarely prosecuted, it is possible for a defendant accused of California Health & Safety Code 11173 HS prescription drug fraud to also face charges for this offense if the investigation reveals a basis for it.
As a DUI crime, addicted driving is usually a misdemeanor--but may be charged as a felony if the defendant has three (3) or more prior DUI convictions.
Counterfeiting a prescription blank HS 11162.5
Counterfeiting a prescription blank is making or possessing counterfeit prescription blanks for a controlled substance. The crime can be a misdemeanor or a felony and is punishable by up to 3 years in jail or prison.
An example of this crime is stealing a prescription pad and xeroxing it with the person intending to use the fraudulent prescription form to obtain drugs. It does not matter if the person does not end up using it to obtain drugs.
Call us for help…
For questions about the crime of HS 11173 or HS 11153 prescription drug fraud/doctor shopping in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on doctor shopping and prescription fraud in Nevada law, please see our pages on doctor shopping and prescription fraud, the unlawfully prescribing or dispensing controlled substances (NRS 453.381), and illegally obtaining prescription controlled substances (NRS 453.391), and identity theft.
- California Prescription Monitoring Program – allows medical practitioners to access their patients’ controlled substance history.
- DEA – Drug Enforcement Administration (DEA.gov)
- US Department of Justice (DOJ)
- US Department of Health
- California Department of Public Health
- Health and Safety Code section 11173 HS – Fraud, deceit, misrepresentation [doctor shopping form of California prescription fraud].
- Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties [prescription fraud by medical professionals].
- Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation [doctor shopping form of California prescription fraud], endnote 1 above.
- Health & Safety Code 11153 HS. See also: Bradley v. CVS Pharmacy, Inc. (Cal. App. 2d Dist., 2021), 279 Cal. Rptr. 3d 314; Burrill v. Nair (Cal. App. 3d Dist., 2013), 217 Cal. App. 4th 357.
- Same. See also Penal Code 1170(h) PC.
- Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation. See also: People v. Eroshevich (Cal. App. 2d Dist., 2013), 214 Cal. App. 4th 1335; People v. Meyer (Cal. App. 1st Dist., 1963), 216 Cal. App. 2d 618.
- See Health & Safety Code 11007 HS – Controlled substance
- Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation
- Black’s Law Dictionary (9th ed. 2009), fraud. [form of prescription fraud].
- Health & Safety Code 11153
- See, e.g., Legal Drugs, Deadly Outcomes, Los Angeles Times, Nov. 11, 2012.
- Health & Safety Code 11173 HS – Fraud, deceit, misrepresentation
- Same. See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
- Same. See also Penal Code 1170(h) PC.
- Penal Code 1000 PC – Application of chapter to certain violations
- See Business & Professions Code 2236
- See Business & Professions Code 2761
- San Jose criminal defense attorney Reve Bautista has over two decades of experience as a prosecutor, first at the office of the Contra Costa District Attorney and then at the San Francisco DA’s Office.
- Health & Safety Code 11153 HS – Controlled substance prescriptions; issuance; filling; legality; offense; penalties
- See People v. West (1956) 139 Cal.App.2d Supp. 923, 924.
- See same.
- Health & Safety Code 11368
- Health & Safety Code 11350 HS
- See endnote 21, above.
- Health & Safety Code 11352 HS