Counterfeiting a Prescription Blank

Health & Safety Code 11162.5 HS - Counterfeiting a Prescription Blank

Under California law, the dispensing of prescription medications is carefully regulated to prevent abuse. As part of this regulation, the law requires that prescription blanks (the forms used by medical professionals to write prescriptions for controlled substances) be printed on security paper approved by the state's Department of Justice.

Anyone who counterfeits one of these forms is committing a serious crime. Under California Health & Safety Code 11162.5 HS, if you are found guilty of counterfeiting prescription blanks or even having these blanks in your possession, you could face up to three years in prison. HS 11162.5 is a “wobbler” crime, meaning it can be filed as either a misdemeanor or felony case.

Health & Safety Code 11162.5 HS - Counterfeiting a Prescription Blank

HS 11162.5 makes it a crime to possess counterfeit prescription blanks for controlled substances.

Anyone who is addicted to prescription drugs knows they have a serious problem that often has life-altering consequences. It's no secret many addicts will do almost anything to obtain prescription drugs, including creating a counterfeit prescription pad in an attempt to fool a pharmacist into filling a prescription for a controlled substance.

As noted, HS 11162.5 describes the crime of counterfeiting a prescription blank as something that could lead to felony charges. It's not just a crime to counterfeit a prescription blank but also to knowingly possess one.

An example of HS 11162.5 includes a situation where someone is highly addicted to Oxycontin and is seeking to find a way to obtain more to support their habit. They devise a plan to use their home computer to duplicate his doctor's prescription pad and run off several copies.

He takes a copy, writes a false prescription, and attempts to have it filled at a local pharmacy. In this scenario, they could face criminal charges for producing a counterfeit prescription blank under Health & Safety Code 11162.5. California Health & Safety Code 11368, forging a prescription for a narcotic drug, is a closely related drug crime.

What Does HS 11162.5 Say?

The full text of California Health & Safety Code 11162.5 HS says,

"(a) Every person who counterfeits a prescription blank purporting to be an official prescription blank prepared and issued pursuant to Section 11161.5 or knowingly possesses more than three counterfeited prescription blanks shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code or by imprisonment in a county jail for not more than one year.

(b) Every person who knowingly possesses three or fewer counterfeited prescription blanks purporting to be official prescription blanks prepared and issued pursuant to Section 11161.5 shall be guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment."

Thus, it's a crime not only to counterfeit a prescription form but also to possess a counterfeited form knowingly. The term “counterfeit” in the context of HS 11162.5 means making an exact imitation of the prescription blank with the specific intent to defraud or deceive.

It should be noted that “prescription blanks” in the definition have other similar names, such as ‘pads” or “forms,” but all mean what doctors use to authorize prescriptions for controlled substances. Simply put, HS 11162.5 specifically makes it a crime to do either of the following:

To counterfeit prescription blanks (i.e., to create fake prescription forms that imitate official prescription blanks) or
To be in possession of prescription blanks.

Note that this offense is not the same as forging a prescription (BPC 4324)—e.g., using an official prescription form and forging a physician's name on it, a crime that carries its penalties. Rather, counterfeiting a prescription blank involves duplicating the format, layout, or identifying features of genuine prescription blanks.

What Must Be Proven to Convict?

To convict you of a crime under Health & Safety Code 11162.5, the prosecution must prove the following elements of the crime beyond a reasonable doubt:

You created one or more counterfeit prescription blanks,
They purported to be an official prescription blank prepared and issued by a licensed doctor, OR
You were in possession of one or more counterfeit prescription blanks, AND
You knew that the prescription blanks were counterfeit.

Notably, you don't necessarily have to write a false prescription or present one to a pharmacist for this code section to apply. Simply having a prescription form that looks like an official one and which you know is not an authentic version can lead to prosecution.

What Are Some Examples?

EXAMPLE 1: John, a pharmacy assistant, uses his access to official prescription blanks to create counterfeit prescriptions for his friend Mark, who then uses them to obtain controlled substances from various pharmacies. John and Mark could be charged under HS 11162, John for counterfeiting prescription blanks, and Mark for possessing them.

EXAMPLE: Sarah, a single mother struggling financially, creates three counterfeit prescription blanks using a downloaded template to obtain ADHD medication for her child. Despite her desperate situation, she is still subject to prosecution under HS 11162.

What Are the HS 11162.5 Penalties?

Health and Safety Code 11162.5 counterfeiting a prescription pad and knowingly possessing one are a “wobbler” offense, where the prosecutor can file misdemeanor or felony charges. If convicted of a misdemeanor (HS11162.5(b)) for knowingly possessing three or fewer counterfeit prescription blanks, you will face the following penalties:

Up to six months in county jail.
A fine of up to $1,000.

Possession of more than three counterfeit prescription blanks, or creating the counterfeit blanks, is a "wobbler" offense. This means it may be charged either as a misdemeanor or a felony with the following penalties:

If charged as a misdemeanor, you could face up to one year in county jail.
If charged as a felony, you could face 16 months, two, or three years in state prison.

There are different penalties based on the amount of counterfeiting a prescription blank you knowingly possessed.

What Are Related Offenses?

Penal Code 470 PC - Forgery. This involves falsifying a signature or seal or counterfeiting documents with fraudulent intent.
Health & Safety Code 11173 HS – Doctor shopping and prescription fraud. This is using fraud or deception to obtain drugs without a prescription.
Health & Safety Code 11368 HS – Forging or altering a prescription. This involves forging or altering a prescription, possessing drugs obtained through a forged prescription, or using a forged prescription to obtain drugs.
Health & Safety Code 11153 HS. Prescribing controlled substances without a medical purpose is called "prescription fraud."
Health & Safety Code 11154(a) HS– Prescribing controlled substance without treatment. This involves prescribing drugs to a patient not under your care.
Health & Safety Code 11156 – Prescribing controlled substance to an addict. This law involves prescribing, administering, or dispensing drugs to someone suffering from addiction.
Business and Professions Code 4323 BPC - Forging or altering a prescription. This law involves signing someone else's name on a prescription or possessing drugs obtained with a forged prescription. It's a misdemeanor crime to make false statements to a pharmacist to get a drug.

How Can You Fight HS 11162.5 Charges?

If you're charged with violating HS 11162.5, an experienced California criminal defense attorney can utilize several defense strategies to counter the charges and prove your innocence. Common defenses include, but are not limited to, the following:

Lack of knowledge. Recall the elements of the crime above where it must be proven that you knowingly possessed a counterfeit prescription blank. In other words, it has to be shown you have a counterfeited prescription pad on your person or within your control. We can argue that you didn't know you had a counterfeit prescription pad. Perhaps it was found in a common area of your home where other people live, and you did not know of its presence. This defense hinges on showing that you had no reason to suspect the blanks were not genuine.
Lack of Intent: Demonstrating that you did not knowingly possess or create counterfeit prescription blanks. For instance, you may have been unaware that the blanks were counterfeit due to deceit by another party.
Illegal Search and Seizure: The defense might file a motion to suppress this evidence if the counterfeit prescription blanks were obtained through law enforcement's illegal search or seizure. If successful, this could result in the dismissal of the charges if the prosecution's case relies heavily on the improperly obtained evidence.
Police Entrapment. Sometimes, people are arrested due to an undercover “sting” operation by police where they pretend to want to buy counterfeit prescription pads. We might be able to argue police lured you into committing the crime, which is known as “entrapment.” In other words, we might be able to show undercover police acted improperly by using harassment, fraud, pressure, or threats to persuade you to commit a crime you would have otherwise not committed. This defense can be particularly effective if it can be shown that you were not predisposed to commit the crime.

We have a track record of success in all types of drug-related arrests and will work to get your charges reduced to a lesser crime or dismissed. Our law firm's early intervention in your case can increase your chances of a favorable outcome. Through prefiling intervention, we might be able to negotiate with the prosecutor to avoid the filing of criminal charges.

Eisner Gorin LLP is a criminal defense law firm serving clients throughout Southern California. For additional information, contact us.

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