Health and Safety Code 11162.5: Counterfeiting a Prescription Blank Laws in California

I. H&S 11162.5: Counterfeiting a Prescription Blank

Legal Definition:

“(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.”

To be found guilty under HS 11162.5 the prosecution must prove:

1. You counterfeited a prescription form for controlled substances;

OR

2. You knowingly possessed a counterfeited form for controlled substances.

II. What does this mean?

Here, counterfeit means to make an exact imitation of something with the intent to deceive or defraud another. A prescription blank is what a medical professional uses when ordering a prescription for a controlled substance for one of their patients. A controlled substance is a drug or chemical whose manufacture, possession, and use are regulated by the government. This criminal section penalizes both the person who creates the counterfeit pad, as well as the person who knowingly possesses that pad. You must know that the pad is counterfeit or fraudulent, however, to be charged with possessing it.

Prescription pads for controlled substance prescriptions are obtained from security printers that are approved by the Department of Justice. An example could be a person working at a doctor’s office, stealing their prescription pad, making copies, and selling controlled substance prescriptions to friends for money. This would violate the first element above since you are making illegal counterfeit of an original pad.

III. Penalties

A charge under HS 11162.5 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 $1,000 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. Entrapment

Entrapment occurs when police, or their agents, encourage or promote the crime by way of their overbearing conduct. The idea has to be formed in the mind of the police, and not on the Defendant, in order to successfully use this defense. Here, an undercover officer could lure by pressure a medical professional into making a counterfeit prescription blank. If the contact is so outrageous to overwhelm and convince them to violate this section, the defense Entrapment would be available to that person to defend that, but for the police’s overbearing conduct, you would not have committed this offense.

As stated above, if you lack the intent to counterfeit the prescription blank, then you could not be found guilty of this charge. Failing to show you lacked the intent to trick or fool another with a prescription blank, would act as a critical defense to prove you are innocent of the charges. This would be the defense of insufficient evidence because you lacked the intent to commit this counterfeit act.

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