Business & Professions Code § 725(b) BPC – Excessive Prescribing of Drugs

California Business and Professions Code § 725(b) makes it a crime to engage in repeated acts of excessively prescribing drugs. Doing so is a misdemeanor punishable by 60 to 180 days in jail and a fine of $100 to $600.

725(b) BPC states that:

Any person who engages in repeated acts of clearly excessive prescribing or administering of drugs or treatment is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than six hundred dollars ($600), or by imprisonment for a term of not less than 60 days nor more than 180 days, or by both that fine and imprisonment.

The code section applies to doctors and other medical professionals that can lawfully write a prescription.

Examples

• A doctor, on more than one occasion, prescribes a patient with an amount of medication that is clearly outside industry standards.
• A registered nurse practitioner repeatedly prescribes patients with medication with no medical basis and in clearly excessive amounts.
• A physician writes a prescription for a patient, on four instances, for a dose of medication that is beyond the appropriate standard of care.

Defenses

Three potential ways to fight BPC 725(b) charges are to show that:

• you did not prescribe an “excessive” amount of drugs;
• you prescribed too many drugs but only on one occasion; and/or
• you were entrapped by police.

Our California criminal defense attorneys will explain the following in this article:

• 1. When is it a crime to prescribe drugs excessively?
• 2. Are there defenses to Business & Professions Code 725?
  • 2.1 You did not prescribe an “excessive” amount
  • 2.2 The incident was an isolated offense
  • 2.3 You were entrapped by the police
• 3. Penalties, punishment, and sentencing
• 4. Related offenses
  • 4.1 False statement to obtain a drug – BPC 4323
  • 4.2 Doctors writing illegal prescriptions – HSC 11153
  • 4.3 Forging or altering a prescription – BPC 4324

1. When is it a crime to prescribe drugs excessively?

Business and Professions Code 725 BPC is the California statute that makes it a crime for anyone who can legally prescribe a drug to engage in:

“repeated acts of clearly excessive prescribing or administering of drugs.”¹

The determination as to whether you prescribed an “excessive” amount of drugs is determined by customary practices and the reasonable standard of care.²

If the facts of a case show that a prescription was for a quantity of drugs

• outside industry norms and/or
• beyond the normal standard of care,

then the amount is likely excessive.³

2. Are there defenses to Business & Professions Code 725?

Here at Shouse Law Group, we have represented literally thousands of healthcare providers, including doctors, who have been accused of crimes. In our experience, three effective defenses to BPC 725(b) charges are:

1. You did not prescribe an “excessive” amount;
2. The incident was an isolated offense; and/or
3. You were entrapped by police.

2.1. You did not prescribe an “excessive” amount

No law was broken as long as what you prescribed was within customary practices and in line with the appropriate standard of care. In these cases, we would call upon expert witnesses in the industry to testify on your behalf that your actions were reasonable and professional.

2.2. The incident was an isolated offense

If the D.A. cannot prove beyond a reasonable doubt that you excessively prescribed a drug on repeated occasions, you cannot be convicted for just one act of prescribing too many drugs. If we can show that only one of the alleged acts was “excessive,” then the case should be dropped.

2.3. You were entrapped by police

If you were arrested by an undercover police officer after giving them a prescription, we would try to show that the officer entrapped you through excessive pressure, harassment, fraud, flattery or threats. In short, if we can demonstrate that you never would have committed BPC 725(b) but for the police’s actions, the court should dismiss your case.

3. Penalties, Punishment, and Sentencing

A violation of BPC 725(b) is charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for between 60 and 180 days; and/or,
• a fine between $100 and $600.⁴

Please note that in lieu of jail time a judge may grant misdemeanor probation. This is also called “summary” or “informal” probation.

4. Related Offenses

There are three crimes related to the excessive prescribing of drugs. These are:

1. false statement to obtain a drug – BPC 4323;
2. doctors writing illegal prescriptions – HSC 11153; and,
3. forging or altering a prescription – BPC 4324.

4.1. False statement to obtain a drug – BPC 4323

It is a crime in California, per Business and Professions Code 4323, to make false statements to a pharmacist in order to get a drug.

First, it is a crime under BPC 4323 if:

• you falsely represent yourself to be a physician or other person that can lawfully prescribe a drug, in order to get a drug; and,
• the misrepresentation, or false statement, took place in an electronic or telephone communication with a pharmacist.⁵

Second, it is a crime under BPC 4323 if:

• you falsely represent that you are acting on behalf of a person legally authorized to prescribe a drug (such as a doctor), in order to get a drug; and,
• the misrepresentation, or false statement, took place in an electronic or telephone communication with a pharmacist.⁶

A violation of BPC 4323 is charged as a misdemeanor. The crime is punishable by:

• imprisonment in the county jail for up to one year; and/or,
• a maximum fine of $1,000.⁷

4.2. Doctors writing illegal prescriptions – HSC 11153

Per California Health and Safety Code 11153, it is a crime for a doctor to write an illegal prescription.

HSC 11153 says that a medical professional writes an illegal prescription when they write prescriptions for controlled substances that:

• are not issued for legitimate medical purposes; and/or,
• are not issued in the usual course of their professional practice.⁸

A violation of this code section is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

Misdemeanor offenses are punishable by imprisonment in the county jail for up to one year. Felony offenses carry a potential jail sentence of 16 months, two years or three years.⁹

4.3. Forging or altering a prescription – BPC 4324

It is a crime in California, per California Business and Professions Code 4324, to forge or alter a prescription.

In particular, Business and Professions Code 4324 makes it a crime to do any of the following:

• forge or alter a prescription,
• sign someone else’s name (whether real or fictitious) on a prescription, or
• possess drugs obtained with a forged prescription.¹⁰

BPC 4324 is a California “wobbler” offense, meaning it can be charged as a misdemeanor or a felony.

If charged as a misdemeanor, the offense can be punished by:

• up to one year in county jail, and/or
• a fine of up to $1,000.¹¹

If charged as a felony, the penalties include:

• 16 months, or two or three years in county jail, and/or
• up to a $10,000 fine.¹²

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Legal References:

1. California Business and Professions Code 725(b) BPC.
2. People v. McKay (1979), 97 Cal. App. 3d Supp. 59.
3. See same.
4. California Business and Professions Code 725(b) BPC.
5. California Business and Professions Code 4323 BPC. This code section states: “Every person who, in order 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 lawfully 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.”
6. See same.
7. See same. See also Business and Professions Code 25617 BPC.
8. California Health and Safety Code 11153 HSC.
9. See same.
10. California Business and Professions Code 4324 BPC.
11. See same.
12. See same.