NRS 453.381 is the Nevada law that requires a medical provider to “prescribe or administer controlled substances only for a legitimate medical purpose and in the usual course of his or her professional practice.”
Health care workers such as doctors, nurses, or pharmacists convicted of violating NRS 453.381 face not only professional discipline such as a license suspension or revocation. They also face penalties for a category C felony, including:
- 1 – 5 years in Nevada State Prison, and
- up to $10,000
But the D.A. could be amenable to a plea bargain that results in an NRS 453.381 charge getting reduced or even dismissed. Possible defenses include:
- the defendant was falsely accused;
- (in pharmacist cases) the defendant had no reason to believe the prescription was invalid prior to filling it; or
- the defendant was a victim of entrapment by law enforcement
In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of unlawfully prescribing, possessing, administering, transporting and dispensing controlled substances. Click on a topic to jump directly to that section:
- 1. Legal definition of unlawfully prescribing or dispensing drugs in Nevada
- 2. What are the penalties?
- 3. What are the best defenses?
- 4. Are there immigration consequences?
- 5. Can the record be sealed?
- 6. Related offenses
1. Legal definition of unlawfully prescribing or dispensing drugs in Nevada
NRS 453.381 prohibits health providers and companies from deviating from established law when prescribing, dispensing, or supplying prescription medications:
1. In addition to the limitations imposed by NRS 453.256 and 453.3611 to 453.3648, inclusive, a physician, physician assistant, dentist, advanced practice registered nurse or podiatric physician may prescribe or administer controlled substances only for a legitimate medical purpose and in the usual course of his or her professional practice, and he or she shall not prescribe, administer or dispense a controlled substance listed in schedule II for himself or herself, his or her spouse or his or her children except in cases of emergency.
2. A veterinarian, in the course of his or her professional practice only, and not for use by a human being, may prescribe, possess and administer controlled substances, and the veterinarian may cause them to be administered by a veterinary technician under the direction and supervision of the veterinarian.
3. A euthanasia technician, within the scope of his or her license, and not for use by a human being, may possess and administer sodium pentobarbital.
4. A pharmacist shall not fill an order which purports to be a prescription if the pharmacist has reason to believe that it was not issued in the usual course of the professional practice of a physician, physician assistant, dentist, advanced practice registered nurse, podiatric physician or veterinarian.
5. Any person who has obtained from a physician, physician assistant, dentist, advanced practice registered nurse, podiatric physician or veterinarian any controlled substance for administration to a patient during the absence of the physician, physician assistant, dentist, advanced practice registered nurse, podiatric physician or veterinarian shall return to him or her any unused portion of the substance when it is no longer required by the patient.
6. A manufacturer, wholesale supplier or other person legally able to furnish or sell any controlled substance listed in schedule II shall not provide samples of such a controlled substance to registrants.
7. A salesperson of any manufacturer or wholesaler of pharmaceuticals shall not possess, transport or furnish any controlled substance listed in schedule II.
8. A person shall not dispense a controlled substance in violation of a regulation adopted by the [Pharmacy] Board.
In short, health care workers are required to follow stringent rules when providing prescriptions and medications to others; abusing their privileges by breaking these rules is a felony crime.1
2. What are the penalties?
An NRS 453.381 conviction is punished as a category C felony. The sentence is:
- one to five (1 – 5) years in prison, and
- up to $10,000 in fines (at the judge’s discretion)2
Anyone accused of this crime is advised to retain legal counsel as soon as possible to try to plea bargain the charges down or have them dropped completely.
In addition, the licensing boards that originally granted the defendants their professional license may initiate disciplinary procedures against them:
For instance, the Nevada Board of Medical Examiners can consider suspending the medical licenses of doctors who unlawfully prescribed medications. Learn more about license suspensions for doctors convicted of crimes.
3. What are the best defenses?
There are several possible defenses to NRS 453.381 charges depending on the specific situation. Some defenses may include:
- The defendant was falsely accused by an angry patient or vengeful co-worker;
- In cases of pharmacists, the defendant had no reason to believe that the prescription was problematic before dispensing the medication;3
- The police unlawfully goaded the defendant into breaking the law when the defendant was not predisposed to (in short, the defendant was entrapped)
No matter the criminal case, the D.A. is required to prove guilt beyond a reasonable doubt should the case go to trial. The defense and prosecution may try to admit various evidence, such as:
- medical notes, and
- surveillance videos
If the defense attorney can demonstrate to the prosecution that their evidence is too weak to sustain a guilty verdict, the charges should be dismissed before the trial.
4. Are there immigration consequences?
There are no published cases where the Las Vegas immigration court adjudged an NRS 453.381 violation as deportable. But since this offense involves drugs, it is likely that the court would consider it to be deportable as an aggravated felony and/or a crime involving moral turpitude.
Any non-citizen accused of violating NRS 453.381 is strongly encouraged to seek out an attorney who will fight for a charge reduction to a non-deportable offense (or a full dismissal if possible).
5. Can the record be sealed?
People convicted of violating NRS 453.381 must wait five (5) years after the case ends before they can ask the court to seal their criminal record. But if the charge gets dismissed, then there is no waiting period to ask the court for a record seal. Learn more about Nevada record seal procedures.
6. Related offenses
6.1. Health care fraud
Health care fraud occurs when health care providers try to cheat insurance companies out of monies they are not lawfully entitled to. It is a category D penalty. The sentence is:
- one to four (1 – 4) years in prison, and
- up to $5,000 in fines (at the judge’s discretion), and
- restitution to the insurance company, and
- reimbursement to the government for investigating the case
6.2. Unlawful obtaining of prescription drugs
Illegally obtaining prescription drugs (NRS 453.391) is a category C felony. The punishment carries:
- one to five (1 – 5) years in prison, and
- up to $10,000 in fines (at the judge’s discretion)
NRS 453.391 also makes it a crime for patients to obtain prescriptions from one doctor without first informing that doctor about prior prescriptions (a.k.a. doctor shopping).
6.3. Drug possession
The punishment for drug possession (NRS 453.336) turns on the types of drugs and the defendant’s criminal history.
- NRS 453.381.
- NRS 453.421 Penalty for violation of NRS 453.371 to 453.391, inclusive. A person who violates any provision of NRS 453.371 to 453.391, inclusive, is guilty of a category C felony and shall be punished as provided in NRS 193.130.
- NRS 453.381(4).
- NRS 179.245.
- NRS 179.255.