Counterfeit Prescription Blanks: Punishment? Defenses?

There are several ingenious, albeit criminal, ways to obtain controlled substances for personal misuse or sales.  One way is to make or possess fake (“counterfeit”) prescription forms with the controlled substance already written in, with an authorized or ordered strength and quantity, and signed for by a medical doctor.  One just needs to write in a date and one’s own name and then take it to the local pharmacy to be filled.

One may obtain such forms by purchasing them from another person or making such forms oneself.  One may also steal a pad of such prescription forms while in a doctor’s office for a visit or while burglarizing the office after it closed.  The person then photocopies the form for use indefinitely.  Similarly, an office nurse or secretary steals a form and then sells it to others.

“Counterfeit” means to make an exact imitation of something with the intent to deceive or defraud. 18A Ca Jur Criminal Law: Crimes Against Property § 449.

This clever method is punishable under California Health and Safety Code § 11162.5.  It is a “wobbler,” meaning it can be charged either as a misdemeanor or a felony, depending upon the facts of the case, particularly if the suspect has more than three such fake prescriptions, and defendant’s prior criminal history.  If charged as a felony, one could face up to three years in state prison (to be served in county jail if one is not already a convicted sex offender).  When prosecuted as a misdemeanor, if the person had three or less such forms, defendant faces up to a year or six months in county jail.

Probation may be possible as a way of resolving the case, with terms that include attending Narcotics Anonymous (NA) meetings, a residential or outpatient drug treatment program and /or significant amounts of community labor or community service.

Section 11162.5 states, “(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.

Forms for obtaining controlled substances are special forms that the Department of Justice provides access to for licensed medical professionals under California Health and Safety Code 11161.5(a).  However, this certainly has not stopped some folks from using Photoshop or other software to make their own for personal use. 

One can also violate § 11162.5 by possessing such counterfeit items even if one did not make the form.  People v. Gandotra (2d App. Dist. 1992) 11 Cal. App. 4th 1355; People v. Demery (2d App. Dist. 1980) 104 Cal. App. 3d 548.

The defenses to this charge are rather intuitive.  First, one might argue that he or she had no intent to use the form by taking it to a pharmacy to obtain an otherwise unauthorized controlled substance.  The person just had the form by mistake or in case of an emergency.  

Second, one might argue that he or she did not know it was in his wallet or purse.  Someone else placed it there to get defendant in trouble out of spite or revenge.  

Third, there may be an illegal search by the police without a search warrant or with a search warrant that was supported by insufficient probable cause, which one might discover by traversing the affidavit in support of the warrant.

In trying to resolve the case for charges other than for counterfeiting prescription blanks for a controlled substance, one may want to consider resolving the case for forging or altering a prescription, a violation of Business & Professions Code § 4324, which can include possessing such a controlled substance without a valid prescription.