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Health And Safety Code 11368 HS - Forging Drug Prescription

HEALTH AND SAFETY CODE 11368 HS – FORGING DRUG PRESCRIPTION

California Health and Safety Code 11368 makes it illegal to forge, alter, issue, or use an altered prescription for a narcotic drug, as well as issuing or using a narcotic drug prescription that has a forged or fictitious signature. It is also a crime to obtain or possess a narcotic drug through a forged, fictitious, or altered prescription. Another related offense is known as “doctor shopping,” which falls under California Health & Safety Code 11173 and involves prescription fraud.

Prescription drug abuse and addiction have become major problems affecting a growing number of people. Since these drugs can be legally obtained with a valid prescription, some individuals may turn to forging medical prescriptions to satisfy their addiction.

11368: Every person who forges or alters a prescription or who issues or utters an altered prescription, or who issues or utters a prescription bearing a forged or fictitious signature for any narcotic drug, or who obtains any narcotic drug by any forged, fictitious, or altered prescription, or who has in possession any narcotic drug secured by a forged, fictitious, or altered prescription, shall be punished by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison.

California Health and Safety Code 11019 HS defines “narcotic drug” as encompassing opiates, cocaine and its derivatives, and other substances frequently misused by addicts. This category includes, but is not limited to, heroin, cocaine, opium, morphine, codeine, Demerol, fentanyl, and acetyl fentanyl.

California Health and Safety Code 11027 HS defines a “prescription” as an instruction for a controlled substance issued by the prescriber to the patient or a dispenser (e.g., a pharmacy) via oral, written, or electronic means (through computer or fax).

In California, “uttering” a prescription occurs when someone employs or attempts to utilize a counterfeit or altered prescription while portraying it as authentic through their statements or behavior.

Under California law, there are two primary forms of possession:

  • Actual possession refers to having physical custody or control over something.
  • Constructive possession signifies ownership or control over something without direct physical contact, typically in a location where the person has a right to exert control.

Two or more individuals can concurrently hold actual or constructive possession of an item, which is referred to as “joint” possession.

Elements To Prove A Forging Or Altering Prescription Case

To secure a conviction for forging or altering a prescription for narcotic drugs, as outlined by California Health and Safety Code 11368, the Los Angeles County prosecutor must demonstrate the elements of the crime, which are detailed in CALCRIM 2320 Jury Instructions:

  • You engaged in one of the following actions:
    • Forging or altering a prescription.
    • Giving someone a prescription that was altered or contained a false or forged signature.
    • Using or attempting to use a forged or altered prescription to obtain drugs.
    • AND, if someone else forged or altered the prescription, you knew about it.
  • The prescription in question was intended for a narcotic drug.
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If the charge is for possessing a narcotic drug obtained with a false prescription, the prosecutor must establish the following elements:

  1. You obtained or possessed a narcotic drug.
  2. You were aware of the presence of the drug.
  3. You knew that the substance was a narcotic drug.
  4. The amount of the narcotic drug was usable, meaning it could be used as a drug by someone.
  5. The narcotic drug was obtained by using a forged, fictitious, or altered prescription.
  6. You were aware that the narcotic drug was obtained with such a prescription.

A “usable amount” of a narcotic drug refers to an amount that is sufficient to be used as a drug, regardless of whether it is enough to induce a state of intoxication.

It is not necessary for you to know the specific name or effects of the drug you possessed. It is sufficient that you knew it was a narcotic drug of some kind.

To prove what you knew, the prosecutor may rely on various forms of evidence, including your admissions or statements to law enforcement, statements you made to other individuals (witnesses), evidence of prior similar crimes, or circumstantial evidence.

Examples of HS 11368

Here are two examples of prescription fraud:

An individual unlawfully obtains a prescription pad from a medical professional’s office and uses it to write a prescription, forging the doctor’s signature in the process.

An individual knowingly purchases a narcotic drug from another person, aware that the prescription used to obtain the drug was falsified or altered.

Penalties, Punishment, And Sentencing

California Health and Safety Code 11368 is a “wobbler” offense in California, meaning it can be charged as either a misdemeanor crime or a felony crime, based on the prosecutor’s discretion.

  • If convicted as a misdemeanor, potential penalties include a jail term ranging from six months to one year, a fine of up to $1,000, and/or misdemeanor probation.
  • If convicted as a felony, potential penalties include a prison term of 16 months, two or three years, or felony probation.
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If granted probation, you may not have to spend much time in jail or prison, but you will have specific conditions to follow for a period of several years, typically three to five years. These conditions may include drug counseling or treatment, payment of fines, community service or labor, meetings with a probation officer (for felony probation), and abiding by laws and abstaining from drug use.

Failure to comply with these probation conditions may result in the judge imposing the full jail or prison sentence.

How To Fight Charges Under Health and Safety Code 11368 HS?

There are various potential defenses that can be applied to charges under California Health and Safety Code 11368. It is important to consult with a Los Angeles Drug crime attorney from Tabibnia Law Firm California to determine which defenses are applicable to your specific case. Some possible defenses include:

  • Legitimate prescription: If you had a valid prescription for the drugs in question, it can be a defense to the charges.
  • Lack of knowledge of forgery or alteration: If you were unaware that the prescription was forged or altered, this can be a defense.
  • Non-use of forged prescription: If you possessed a forged prescription but did not attempt to use it, it can be a defense.
  • Non-use of forged prescription: If you possessed a forged prescription but did not attempt to use it, it can be a defense.
  • Lack of knowledge of drug presence: If you were unaware that the drugs were present, it can be a defense.
  • Illegal search: If the drugs were discovered during an illegal search, this can be a defense.

It is important to note that these are just some examples of potential defenses and that the specific circumstances of your case may warrant additional defenses or variations of these defenses. Consulting with a knowledgeable attorney is crucial in determining the most effective defense strategy for your situation.

Immigration Consequences of Forging Or Altering A Prescription

If you are arrested for violating HSC 11368 and law enforcement has reason to believe that you may not be a United States citizen, they are required to notify U.S. Immigrations and Customs Enforcement (ICE).

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It is important to note that even attempting to violate a California law related to narcotic drugs can be grounds for deportation. Therefore, if you are an undocumented immigrant who is arrested under Health and Safety Code 11368, it is strongly recommended that you contact an experienced lawyer as soon as possible to understand your rights and options in this situation.

If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

Federal Law

Under the Federal Controlled Substances Act – 21 USC 843, it is a federal crime to acquire or possess a controlled substance through misrepresentation, fraud, forgery, deception, or subterfuge.

While the enforcement of small-scale drug violations is typically left to local law enforcement in California, federal drug laws are often utilized to target individuals engaged in activities such as doctors who issue numerous false prescriptions and drug traffickers involved in the distribution of large quantities of drugs obtained through forged prescriptions.

Federal law also extends to federally owned land in California, including post offices, federal buildings, federal courthouses, and national parks.

Violation of 21 USC 843 is considered a felony offense. For a first offense, individuals can face up to four years in federal prison, while subsequent offenses can result in up to eight years in federal prison, along with a maximum fine of $250,000.

Related Crimes

Speak With Criminal Defense Lawyer From Tabibnia Law Firm

If you have been arrested for forging or altering a prescription for narcotic drugs in violation of California Health and Safety Code 11368, it is crucial to seek the guidance of an experienced criminal defense lawyer. Cyrus Tabibnia at Tabibnia Law firm in Los Angeles specializes in various drug-related cases and has a proven track record of success. They provide legal representation to clients throughout Southern California, including the greater Los Angeles area and the San Fernando Valley.

To learn more about the implications of forging prescriptions for narcotics and to schedule a consultation with Cyrus Tabibnia, please call 866-713-2159.

Legal References:

Cal. Health & Saf. Code § 11368 | CALCRIM No. 2320. Forged Prescription for Narcotic (Health & Saf. Code, § 11368) | California Code, Health and Safety Code – HSC § 11368

Cyrus Tabibnia

Cyrus Tabibnia

Cyrus Tabibnia, also known as Shahrooz Tabibnia, is a criminal defense lawyer in Los Angeles, California. With a law degree from Loyola Law School, Los Angeles, he has been practicing law since 2005 and holds license #237348. With over 18 years of experience, Cyrus specializes in various misdemeanor and felony criminal Law including Domestic Violence, Theft Crime, Sex crime, DUI & DWI, Personal Injury, Employment Law, and Cannabis & Marijuana Drugs Law. Being bilingual in English, Persian, and Spanish enables him to effectively communicate with a diverse range of clients. From 2014 to 2018, he served as a board member of the Iranian American Bar Association. An expungement attorney in Los Angeles who can assist you in clearing your criminal record in the state of California.

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