Health and Safety Code § 11153 is the California statute that makes it a crime for a medical professional to engage in prescription fraud. This is where the person knowingly prescribes a controlled substance that:
- is not issued for a legitimate medical purpose, or
- is not issued in the usual course of his professional practice.
This statute represents one of California’s laws on prescription fraud and doctor shopping.
The language of the statute reads as follows:
11153. (a) A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. Except as authorized by this division, the following are not legal prescriptions: (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled substances, which is issued not in the course of professional treatment or as part of an authorized narcotic treatment program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use.
(b) Any person who knowingly violates this section shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both that fine and imprisonment.
(c) No provision of the amendments to this section enacted during the second year of the 1981–82 Regular Session shall be construed as expanding the scope of practice of a pharmacist.
Examples
- Kathleen writes prescriptions for Adderall for high school students so they can “study better” for final examinations.
- Nia is a psychiatrist and her boyfriend is addicted to codeine, so she occasionally writes him a prescription for the drug to support his habit.
- Dr. Kim writes painkiller prescriptions for his little brother, who is a college football star with a bad knee.
Defenses
Luckily, there are several legal defenses that a person can raise if accused. These include showing that the defendant:
- did not act knowingly,
- was entrapped, and/or
- was falsely accused.
Penalties
A violation of this section is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.
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.
As a felony, the offense is punishable by:
- imprisonment in the county jail for up to three years, and/or
- a maximum fine of $20,000.
Our California criminal defense attorneys will explain the following in this article:
- 1. What is prohibited under Health and Safety Code 11153 HS?
- 2. Are there legal defenses?
- 3. Penalties, Punishment, and Sentencing
- 4. Related Offenses
11153 HS sets forth the California crime of prescription fraud by doctors or medical professionals.
1. What is prohibited under Health and Safety Code 11153 HS?
Health and Safety Code 11153 is the California statute that makes it a crime for a medical professional to commit prescription fraud.
A medical professional commits this offense when he knowingly writes a prescription for a controlled substance that:
- is not issued for a legitimate medical purpose, and/or
- is not issued in the usual course of his professional practice.1
“Medical professionals” include:
- doctors,
- dentists,
- nurse practitioners, and
- psychiatrists.
California courts have also said that “medical professionals” include unlicensed medical assistants.2
A “controlled substance” means any substance listed on the five classification schedules of federal and California drug laws.3
Some prescription drugs that are often involved in prescription fraud cases include:
- Hydrocodone (Vicodin),
- Oxycodone,
- Xanax, and
- Valium.
2. Are there legal defenses?
A person accused of violating this statute can raise a legal defense. A good defense can work to reduce or even dismiss a charge.
Three common defenses to alleged violations of this statute are:
- no knowledge,
- entrapment, and/or
- falsely accused.
2.1. No knowledge
Please note that this section only applies if a medical professional acts knowingly – or, with the knowledge that he is writing a fraudulent or bad prescription. Thus, a solid legal defense is for a party to show that he did not act knowingly (e.g., perhaps he wrote a bad prescription on accident).
2.2. Entrapment
In many HS 11153 cases, suspects are often arrested and accused after an undercover sting or operation. Any later charges under this statute, though, must get dropped if during the sting officers lured a suspect into committing the crime.
This “luring” is known as entrapment. It applies to overbearing official conduct on the part of police officers, like pressure, harassment, fraud, flattery, or threats.
2.3. Falsely accused
Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. People get falsely accused out of
- jealousy,
- revenge, and
- anger.
Thus, it is a valid defense for a defendant to say that a party falsely accused him.
A violation of this law can result in a fine and/or jail time.
3. Penalties, Punishment, and Sentencing
A violation of Health and Safety Code 11153 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.
As a misdemeanor, the crime is punishable by:
- imprisonment in the county jail for up to one year, and/or
- a maximum fine of $1,000.4
As a felony, the offense is punishable by:
- imprisonment in the county jail for up to three years, and/or
- a maximum fine of $20,000.5
4. Related Offenses
There are three crimes related to prescription fraud by a medical professional. These are:
- using fraud to get a controlled substance – HSC 11173
- prescribing a controlled substance without treatment – HSC 11154a
- counterfeiting a prescription blank – HSC 11162.5
4.1. Using fraud to get a controlled substance – HSC 11173
Health and Safety Code 11173 HS is the California statute that makes it a crime for a person to use fraud to get, or attempt to get, a controlled substance.6
A person violates this statute if he obtains a controlled substance, or a prescription for the same, through:
- fraud, deceit, or misrepresentation, or
- the concealment of a material fact.7
A violation of HSC 11173 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.
A misdemeanor conviction results in possible imprisonment in the county jail for up to one year.
A felony conviction can lean to a county jail sentence of up to three years.
4.2. Prescribing a controlled substance without treatment – HSC 11154a
A violation of HSC 11154a is a wobbler offense, meaning it can be punished as either a California misdemeanor or a felony.
If charged as a misdemeanor, the crime is punishable by imprisonment in a county jail for up to one year.9
If charged as a felony, the offense could lead to a county jail sentence of up to three years.10
4.3. Counterfeiting a prescription blank – HSC 11162.5
Health and Safety Code 11162.5 HS is the California statute governing fake prescription blanks in the context of controlled substances. The statute makes it a crime for a person to counterfeit a prescription blank for a controlled substance, or, to knowingly possess one.11
Health and Safety Code 11162.5 specifically uses the term “prescription blank” in its language and not “prescription form.” The terms have the same meaning. They are what a medical practitioner uses when ordering or authorizing a prescription for a controlled substance. Prescription blanks/forms are also referred to as “prescription pads.”
A violation of HSC 11162.5 is a wobbler offense, meaning it can be punished as either a California misdemeanor or a felony.
If charged as a misdemeanor, the crime is punishable by imprisonment in a county jail for up to one year.12
If charged as a felony, the offense could lead to a county jail sentence of up to three years.13
The Law in Other States:
For similar charges in Colorado, please see our article on Prescription Fraud in Colorado C.R.S. 18-18-415. And for similar charges in Nevada, please see our article on Doctor Shopping & Prescription Fraud under Nevada Law (NRS 453.391 & 453.381 & NRS 453.421).
Legal References:
- California Health and Safety Code 11153 HS.
- People v. Gandotra (1992), 11 Cal. App. 4th 1355.
- California Health and Safety Code 11007.
- California Health and Safety Code 11153 HS.
- See same.
- California Health and Safety Code 11173 HS.
- See same.
- California Health and Safety Code 11154 a HS.
- California Health and Safety Code 11371 HS.
- See same.
- California Health and Safety Code 11162.5 HS.
- See same.
- See same.