HEALTH AND SAFETY CODE 11173 HS – FRAUD TO OBTAIN CONTROLLED SUBSTANCES

California Health and Safety Code 11173 is a law that criminalizes the use of fraud to obtain or attempt to obtain a controlled substance. Controlled substances refer to substances listed in the classification schedules of federal drug laws and California drug laws. This includes drugs such as Vicodin, oxycodone, hydrocodone, morphine, xanax, valium, adderall, and ritalin. The term “fraud” involves knowingly misrepresenting the truth or concealing important information to persuade another person to act in a way that harms their interests.

11173 HS: (a) No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation , or subterfuge; or (2) by the concealment of a material fact.

(b) No person shall make a false statement in any prescription, order, report, or record, required by this division.

(c) No person shall, for the purpose of obtaining controlled substances, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant, or other authorized person.

(d) No person shall affix any false or forged label to a package or receptacle containing controlled substances.

Source:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC&sectionNum=11173.

Elements

Under California Health & Safety Code Section 11173 HSC, a person can be convicted if they engage in any of the following acts:

• Obtaining or attempting to obtain controlled substances through fraud, deceit, misrepresentation, subterfuge, or by concealing a material fact.
• Making a false statement in a prescription, order, report, or record.
• Falsely assuming a title or falsely representing oneself as a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant, or any other authorized person.
• Affixing a false or forged label to a package or container containing controlled substances.

Examples:

Example 1: A person visits multiple doctors in a short period of time and deliberately conceals their previous prescriptions to receive multiple prescriptions for the same controlled substance. He then fills these prescriptions at different pharmacies, exceeding the recommended dosage and engaging in doctor shopping.

Example 2: An individual forges a prescription by altering the dosage, quantity, or even the type of controlled substance prescribed. He presents this forged prescription at a pharmacy to obtain the desired drugs without legitimate medical need or authorization.

Example 3: A person assumes a false identity as a healthcare professional and obtains prescription pads or electronic prescribing credentials. He then writes or electronically submit fraudulent prescriptions for controlled substances in their own name or in the names of others, with the intention of obtaining the drugs for personal use or to sell on the black market.

Penalties

Charges under HS 11173 are considered wobbler offenses, which means they can be prosecuted as either a misdemeanor or a felony, depending on the individual’s prior criminal history and the specific details of the case. Factors that can influence the severity of the charge include the frequency of fraudulent acts, the quantity of drugs involved, and the duration of the fraudulent activity, and prior criminal record.

If convicted as a misdemeanor crime, the potential sentence can be up to one year in County Jail, and a fine of up to $1,000 may be imposed. If charged as a felony, the possible sentence can be up to 16 months, 2, or 3 years in State Prison. Additionally, a fine of up to $20,000 may be imposed. It is important to note that at least 50% of the time imposed would need to be served in custody.

While this offense is not classified as a strike offense under California’s Three Strikes law and does not fall under the category of a sex offense as outlined in PC 290, a conviction for this crime may result in the loss of or inability to acquire a professional license due to its association with deceitful acts aimed at obtaining narcotics.

Defenses

Legal defenses for HS 11173 can include:

• Statute of Limitations: If the prosecution fails to bring charges within the specified time limit set by the statute of limitations, it may serve as a defense to the charges. The specific time limit varies depending on the jurisdiction and the severity of the offense.
• Violation of Rights: If there has been a violation of the defendant’s constitutional rights during the investigation, arrest, or trial process, such as illegal search and seizure or denial of the right to counsel, it may serve as a defense. The defense can argue that any evidence obtained through the violation should be excluded from the case.
• Insufficient Evidence: A defense attorney can challenge the sufficiency of the evidence presented by the prosecution. If the evidence is weak, inconsistent, or insufficient to prove the defendant’s guilt beyond a reasonable doubt, it can be argued that there is a lack of evidence to support the charges.
• Entrapment: If the defendant can demonstrate that they were induced or coerced by law enforcement to commit the fraudulent acts, they may have a viable defense of entrapment. This defense asserts that the defendant would not have engaged in the illegal activity if it were not for the actions of law enforcement agents.
• Coerced Confessions: If the defendant’s confession was obtained through coercion, duress, or other forms of improper police conduct, it may be possible to challenge the admissibility of the confession. This defense argues that the confession was not given voluntarily and should be excluded from evidence.

Immigration consequences

In the case of a conviction under California Penal Code 11153 and/or 11173, depending on the circumstances, it is considered a crime of moral turpitude since fraud or deceit is involved, and willfulness is an element. If an individual is not a legal resident, a conviction for HS 11173 can potentially result in deportation in Immigration Court. This is because the offense is considered deportable due to its association with drug use and acts of lying or fraud, which are classified as crimes involving moral turpitude.

Crimes involving moral turpitude are offenses that are objectively considered morally inexcusable, including both misdemeanor and felony crimes. Any offense that is considered “shocking to the conscious” of an average person can prevent a noncitizen from accessing various forms of immigration benefits.

Furthermore, a conviction under HS 11153(a) and/or HS 11173(a), depending on the circumstances, may potentially be considered an aggravated felony for immigration purposes. An aggravated felony is a specific category of crimes, encompassing both misdemeanors and felonies, that can prevent a noncitizen from accessing various immigration benefits. If someone is convicted of a crime that is automatically designated as an aggravated felony, it is likely to lead to removal proceedings before an immigration judge.

If you or someone you know is charged with this crime, it is strongly advisable that you also consult with an immigration lawyer. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

Related Crimes

• Prescribing a Controlled Substance without a Legitimate Purpose – California Health & Safety Code Section 11153 HSC
• Possession of a Controlled Substance – California Health & Safety Code Section 11350 HSC
• Forged Prescription for Narcotic – California Health & Safety Code 11368 HSC
• Prescribing a controlled substance without treatment – HSC 11154a
• Counterfeiting a prescription blank – HSC 11162.5
• Health & Safety Code 11356 HS – prescribe drugs to an addict
• Business and Professions Code 4324 BPC – forging or altering a prescription

Speak With Criminal Defense Lawyer From Tabibnia Law Firm

A conviction for HS 11173 can have severe consequences, potentially resulting in prison time and significant damage to one’s personal and professional life. Even individuals with no prior criminal history can face serious penalties if charged and convicted. Additionally, a conviction for this offense can lead to the loss of any professional licenses and jeopardize one’s career path.

To increase your chances of a favorable outcome, it is crucial to seek the assistance of a skilled attorney who specializes in criminal defense. Attorney Cyrus Tabibnia of the Tabibnia Law Firm has a successful track record of defending individuals charged with drug and prescription fraud crimes, including HS 11173. You can contact a Los Angeles drug crime attorney at 866-713-2159 to discuss your case and seek guidance on the best legal strategies to protect your rights and interests.

Legal References:

Cal. Health & Saf. Code § 11173 | California Code, Health and Safety Code – HSC § 11173 | Justia.com