Business and Professions Code 4323 BP - False Statements to Obtain a Drug

Updated May 17, 2020

Business and Professions Code 4323 BP is the California statute that makes it a crime for a person to make false statements to a pharmacist in order to get a drug. This entails making a false representation either electronically or over the telephone. A conviction is a misdemeanor punishable by up to 1 year in jail and a fine of up to $1000.00.

The language of 4323 BPC states that “every person who, in order to obtain any drug, falsely represents himself or herself to be a physician or other person who can lawfully prescribe the drug, or falsely represents that he or she is acting on behalf of a person who can lawfully prescribe the drug, in a telephone or electronic communication with a pharmacist, shall be punished by imprisonment in the county jail for not more than one year.”

Examples

  • While waiting for a doctor's appointment, a man sneaks onto an office computer and emails in a prescription to a pharmacy for himself stating that he is emailing on behalf of the doctor.
  • While at an urgent care center, a woman uses a work phone and calls in a prescription in her name by saying she is a doctor.
  • A man hacks into a hospital computer and emails in a prescription for painkillers in his name, all while stating to the pharmacist that he is a nurse emailing for a physician.

Defenses

Luckily, there are several legal defenses that a person can raise if accused. These include showing that an accused party:

  • did not make an electronic or telephonic statement;
  • did not make a representation involving a physician; and/or,
  • acted under duress.

Penalties

A violation of this law is charged as a misdemeanor (as opposed to a California felony or an infraction). The crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a maximum fine of $1,000.

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

customer speaking to a pharmacist
Business & Professions Code 4323 is the crime of making false statements to a pharmacist in order to get a drug.

1. What does it mean to make a false statement to obtain a drug?

Business and Professions Code 4323 BP is the California statute that applies to a person making false statements or false representations to obtain a drug.

A person can violate this code section in two different ways.

First, it is a crime if:

  • a defendant falsely represents himself to be a physician or other person that can lawfully prescribe a drug, in order to get a drug; and,
  • the misrepresentation, or false statement, took place in an electronic or telephone communication with a pharmacist.1

Second, it is a crime if:

  • a defendant falsely represents that he is acting on behalf of a person legally authorized to prescribe a drug (e.g., a doctor), in order to get a drug; and,
  • the misrepresentation, or false statement, took place in an electronic or telephone communication with a pharmacist.2

2. Are there defenses to Business & Professions Code 4323?

A person accused under 4323 BP 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 get the most effective defense.

Three common defenses are:

  1. no electronic or telephonic statement;
  2. no representation involving a physician; and/or,
  3. duress.

2.1. No electronic or telephonic statement

Please recall that a person can only violates the law if he makes a false representation to a pharmacist either electronically or over the telephone. This means it is a legal defense for a defendant to show that while he made a false statement, it was not in a telephone or electronic communication. This would apply, for example, if a person made a false representation in a person-to-person conversation.

2.2. No representation involving a physician

Please also recall that a person commits a crime under BP 4323 if he falsely represents that he is a physician or acting on behalf of a physician (or a person legally authorized to prescribe a drug). Therefore, there is no crime if a statement or representation does not mention a physician or a person that can legally write a prescription.

2.3. Duress

To best understand this defense, think of a case where a bank robber holds a pedestrian at gunpoint and tells him to get into a running car and drive them away.

Duress is a legal defense in which an accused basically says: “He made me do it.” The defense applies to the very limited situation in which a person commits a crime (here, making a false statement to obtain a drug), because somebody threatened to kill him if the crime was not committed.

inmate looking out of a jail cell - a violation of Business & Professions Code 4323 BPC carries a penalty of up to one year in jail.
This crime is punishable by imprisonment and/or a fine

3. What are the penalties?

A violation of BP 4323 is charged as a misdemeanor. The crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a maximum fine of $1,000.3

Please note that in lieu of jail time a judge may order a defendant to misdemeanor probation. This is also called “summary” or “informal” probation.

4. Are there related offenses?

There are three crimes related to making a false representation to get a drug. These are:

  1. doctor shopping – HSC 11173;
  2. possession of a prescription blank – HSC 11162.5; and,
  3. forging or altering a prescription – BPC 4324.

4.1. Doctor shopping – HSC 11173

It is a crime in California, per Health and Safety Code 11173 HS, for a person to doctor shop to get a drug.

HSC 11173 doctor shopping/prescription fraud occurs when a patient obtains or attempts to obtain a prescription for controlled substances through either:

  • fraud, deceit, misrepresentation, or subterfuge; or
  • the concealment of a material fact.4

A “controlled substance” means any substance listed on the five classification schedules of federal and California drug laws.5

Doctor shopping is a wobbler under California law, meaning that it can be charged as either a misdemeanor or a felony.

Misdemeanor prescription fraud is punishable by up to one year in county jail.6

Felony prescription fraud carries a potential jail sentence of:

  • 16 months,
  • two years, or
  • three years.7

4.2. Possession of 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.

HSC 11162.5 makes it a crime for a person to counterfeit a prescription blank for a controlled substance, or, to knowingly possess one.8

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 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.9

4.3. Forging or altering a prescription – BPC 4324

It is a crime in California, per Business and Professions Code 4324, to forge or alter a prescription.

In particular, Business and Professions Code 4324 makes it a crime for a person to do any of the following:

  • forge or alter a prescription,
  • sign someone else's name (whether real or fictitious) on a prescription, or
  • possess drugs obtained with a forged prescription.10

BPC 4324 is a California “wobbler” offense, meaning it can be charged as a misdemeanor or a felony.

If charged as a misdemeanor, the offense can be punished by:

  • up to one year in county jail, and/or
  • a fine of up to $1,000.11

If charged as a felony, the penalties include:

  • 16 months, or two or three years in county jail, and/or
  • up to a $10,000 fine.12

Contact us for help…

Team of receptionists at a criminal defense law firm.
Call us for help at (855) Law-Firm

If you or someone you know has been accused of a crime under Business and Professions Code 4323 BPC, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


Legal References:

  1. California Business and Professions Code 4323 BPC.

  2. See same.

  3. See same. See also Business and Professions Code 25617.

  4. California Health and Safety Code 11173.

  5. See California Health and Safety Code 11007.

  6. California Health and Safety Code 11153.

  7. See same.

  8. California Health and Safety Code 11162.5.

  9. See same.

  10. California Business and Professions Code 4324.

  11. See same.

  12. See same.

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