I. H&S 11154: Prescribing a Controlled Substance without Treatment

Legal Definition:

“(a) Except in the regular practice of his or her profession, no person shall knowingly prescribe, administer, dispense, or furnish a controlled substance to or for any person or animal which is not under his or her treatment for pathology or condition other than addiction to a controlled substance, except as provided in this division.

(b) No person shall knowingly solicit, direct, induce, aid, or encourage a practitioner authorized to write a prescription to unlawfully prescribe, administer, dispense, or furnish a controlled substance.”

To be found guilty under HS 11154 the prosecution must prove:

1. You are a licensed medical practitioner;
2. You prescribed or administered a controlled substance to a person;

AND

3. You were not treating the person for a legitimate medical condition.

II. What does this mean?

This charge penalizes a physician to prescribe controlled substances to patients that you have not properly treated. For example, you could be charged here to prescribe a person a controlled substance, as a friend, who does not need that medication, and you’re either doing it for a nominal fee or to help a friend you have never treated.

This section does not require an actual written prescription. For example, at a hospital, a doctor could prescribe a narcotic for treatment to a patient without diagnosing them, and they likewise are liable under this section. You can also be punished under this section for prescribing treatment to an animal (non-person) without the doctor having properly treated and assessed the patient. A controlled substance as defined here is a drug or chemical whose manufacture, possession, and use are regulated by the government.

III. Penalties

A charge under HS 11154 is a wobbler offense. This means you could be charged with this crime as a misdemeanor or as a felony. Whether you are charged with this crime as a misdemeanor or as a felony depends on your criminal history, the specific facts of your case, as well as your personal history. If you are convicted of this charge as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are convicted of this charge as a felony, you could be sentenced to State Prison for 16 months, 2 or 3 years. You are required to serve at least 50% of that time in custody. You would also be subject to a fine of up to $20,000 for a conviction.

This is not a strike offense under the California Three Strikes Law, and it is not a Sex Offense under PC 290. You could also face a suspension or loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since the offense is deportable, in that it is a crime of moral turpitude.

IV. Common Defenses

1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence
4. Coerced Confessions

You cannot be found guilty of the charge if you can show you did a legitimate treatment plan to your patient. If the Prosecutor cannot show you the lack of a treatment plan, then they fail to establish a required element to convict you. Failing to show this, would be insufficient evidence as a defense, and your case would be dismissed.

Police can also work to sometimes coerce confessions out of you with overbearing police contact. This can happen if police are trying to force you into confessing that you intentionally were prescribing controlled substances to a person you were not treating. Police could promise leniency if you confess, which would lead to a violation and the ability for your Ontario Criminal Defense Attorney to argue that your confession should be thrown out of Court since police coerced it out of you.

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