False Representation to Obtain Prescription Drugs - Business & Professions Code 4323 BPC
California Business and Professions Code 4323 BPC makes it a misdemeanor crime to make false statements to a pharmacist to obtain a drug. The false statements can be either electronically or over the phone. A conviction carries up to one year in county jail and a fine of up to $1,000.
Simply put, the misuse of prescription drugs is a significant concern in California, and the state has enacted strict laws to combat this issue. Specifically, as noted in BPC 4323, it is a crime to falsely represent oneself as a physician for the purpose of obtaining prescription drugs illegally.
The entire text of BPC 4323 says, "Every person who, 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 legally 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."
Simply put, you can violate this law if you falsely represent yourself as a physician or other person who can lawfully prescribe a drug or obtain a drug, and the misrepresentation or false statement occurs in an electronic or phone communication with a pharmacist.
Another way to violate BPC 4323 is when you falsely represent that you are acting on behalf of a person legally authorized to prescribe a drug (doctor) to get a drug.
What Is BPC 4323?
As noted above, California Business & Professions Code 4323 makes it illegal for any person to falsely represent themselves as a physician or another authorized prescriber to obtain prescription drugs.
The law also prohibits individuals from falsely claiming to act on behalf of an authorized prescriber in communications with pharmacists.
The essence of the law is to prevent individuals from acquiring prescription medications through deceitful means, thereby curbing the potential for abuse and ensuring that prescription drugs are dispensed responsibly.
To convict you under BPC 4323, the prosecution must prove several key elements beyond a reasonable doubt:
- False Representation: You falsely represented yourself as a physician or another person who can lawfully prescribe drugs or as an authorized agent of such a person.
- Intent to Obtain Prescription Drugs: You made the false representation with the specific intent to obtain prescription drugs.
- Communication with a Pharmacist: The false representation occurred during a telephone or electronic communication with a pharmacist.
Notably, BPC 4323 only applies to misrepresentations made by phone or electronic communication.
Although an in-person misrepresentation may violate other statutes, you cannot be charged under BPC 4323 unless you utilize the phone or other electronic communication to attempt to obtain prescription drugs illegally.
What Are Some Examples?
EXAMPLE 1: Bob calls a local pharmacy pretending to be Dr. Smith, a licensed physician. During the call, Bob provides specific details about a patient and requests a prescription for a controlled substance such as Adderall. The pharmacy, trusting the caller's representation, fills the prescription. Bob can be charged with false representation to obtain drugs under BPC 4323.
EXAMPLE 2: Jenna is a nurse with access to a physician's electronic prescription system. Jenna uses the physician's login credentials without authorization to submit a prescription for Codeine in her name. Jenna can be charged with a crime under BPC 4323.
EXAMPLE 3: Tom visits a pharmacy and claims to be picking up a prescription for an elderly neighbor. They provide the neighbor's personal information and prescription details, which they previously acquired through deception.
The pharmacy staff, not suspecting any foul play, hands over the prescribed insulin medication to Tom, who has no intention of delivering it to the rightful patient. While Tom may be guilty of other offenses, he will not be charged under BPC 4323.
What Are Related Crimes?
- Health and Safety Code 11173 HS - doctor shopping. This law makes it a crime to go doctor shopping to obtain a prescription drug. This law is violated when a patient receives or attempts to get a prescription for controlled substances through fraud, deceit, misrepresentation, or the concealment of a material fact. A "controlled substance" is any substance listed on the five classification schedules of federal and California drug laws. PC 11173 can be charged as a misdemeanor or a felony, which carries 16 months, two or three years in jail.
- Business and Professions Code 4324 - forging or altering a prescription. This law makes it a crime to forge or alter a prescription, sign someone else's name (actual or fictitious) on a prescription, or possess drugs obtained with a forged prescription. BPC 4324 can also be charged as a misdemeanor or a felony, which carries 16 months, two or three years in jail, and a fine of up to $10,000.
- Health and Safety Code 11162.5 HS - possession of a prescription blank. This law primarily covers fake prescription blanks in the context of controlled substances. It's a crime for someone to counterfeit a prescription blank for a controlled substance or knowingly possess one. A "prescription blank" (also called a prescription pad) is what a medical professional uses when ordering or authorizing a prescription for a controlled substance. HS 11162.5 is also a wobbler that can be filed as a misdemeanor or a felony, which carries 16 months, two, or three years in jail if convicted.
What are the Penalties?
Violating BPC 4323 is categorized as a misdemeanor offense in California. If convicted, an individual faces the following potential penalties:
- Up to one year in county jail and
- Up to $1000 in fines.
Sometimes, the court may grant probation instead of jail time, subject to various conditions such as attending drug counseling or performing community service.
The severity of the penalties can depend on factors such as the defendant's criminal history and the specifics of the offense.
What are the Common Defenses?
If you're accused of misrepresentation to obtain prescription drugs, a skilled California criminal defense attorney can implement several defenses to challenge the charges. Most of these defenses involve refuting one or more elements of the crime, which prosecutors must prove. Some common defenses include:
- No Attempt to Obtain a Prescription: Misrepresenting oneself to a pharmacist is insufficient to be convicted under BPC 4323. Your attorney may make the case that you did not attempt to obtain prescription drugs in your interaction with the pharmacist.
- No Use of Phone or Electronic Communication: If you did not represent yourself as an authorized prescriber via phone or electronic communication (e.g., you did so in person), you cannot be convicted under BPC 4323.
- No Misrepresentation: If, for example, you attempt to convince a pharmacist to fill someone else's prescription under your name and credentials (i.e., not posing as an authorized prescriber), you have not violated BPC 4323.
For additional information, contact our criminal defense law firm, Eisner Gorin LLP, which has offices in Los Angeles, CA.
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