Business and Professions Code 4323
(False Statements/Representations to Obtain a Drug)

Business and Professions Code 4323 BPC 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.

To be guilty under this code section, a defendant must have made a false representation either electronically or over the telephone.

Examples of illegal acts under BPC 4323 include:

  • 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 of a crime under Business and Professions Code 4323. 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 BPC 4323 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:

pharmacist customer
California Business and Professions Code 4323 BPC 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.

1. The legal definition of false statements or representations to obtain a drug.

California Business and Professions Code 4323 BPC 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 under BPC 4323 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 under BPC 4323 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. Legal Defenses

A person accused under Business and Professions Code 4323 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 to BPC 4323 accusations 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 violate Business and Professions Code 4323 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 BPC 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.

man behind bars
This crime is punishable by imprisonment and/or a fine

3. Penalties, Punishment, and Sentencing

A violation of BPC 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. 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 HSC 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 California 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

Were you accused of making a false statement to obtain a drug in California? Call us for help…

california drug criminal defense
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. This code section states: “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.”

  2. See same.

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

  4. California Health and Safety Code 11173 HSC.

  5. See California Health and Safety Code 11007 HSC.

  6. California Health and Safety Code 11153 HSC.

  7. See same.

  8. California Health and Safety Code 11162.5 HSC.

  9. See same.

  10. California Business and Professions Code 4324 BPC.

  11. See same.

  12. See same.

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