Business & Professions Code § 4323 BP – Making False Statements to Obtain a Drug

Business and Professions Code 4323 BP makes it a crime to make false statements to a pharmacist in order to obtain a drug. The false statements can be either electronically or over the telephone. A conviction is a misdemeanor punishable by up to 1 year in jail and a fine of up to $1000.00.

The language of the statute reads as follows:

4323. 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.

Examples

• While waiting for a doctor’s appointment, a man sneaks onto an office computer and emails in a prescription to a pharmacy for himself stating that he is emailing on behalf of the doctor.
• While at an urgent care center, a woman uses a work phone and calls in a prescription in her name by saying she is a doctor.
• A man hacks into a hospital computer and emails in a prescription for painkillers in his name, all while stating to the pharmacist that he is a nurse emailing for a physician.

Defenses

Luckily, there are several legal defenses that a person can raise if accused. These include showing that an accused party:

• did not make an electronic or telephonic statement;
• did not make a representation involving a physician; and/or,
• acted under duress.

Penalties

A violation of this law is charged as a misdemeanor (as opposed to a California felony or an infraction). The crime is punishable by:

• imprisonment in the county jail for up to one year; and/or,
• a maximum fine of $1,000.

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

• 1. What does it mean to make a false statement to obtain a drug?
• 2. Are there defenses to Business & Professions Code 4323?
  • 2.1. No electronic or telephonic statement
  • 2.2. No representation involving a physician
  • 2.3. Duress
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1. Doctor shopping – HSC 11173
  • 4.2. Possession of a prescription blank – HSC 11162.5
  • 4.3. Forging or altering a prescription – BPC 4324

1. What does it mean to make a false statement to obtain a drug?

Business and Professions Code 4323 BP is the California statute that applies to a person making false statements or false representations to obtain a drug.

A person can violate this code section in two different ways.

First, it is a crime if:

• a defendant falsely represents himself 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.¹

Second, it is a crime if:

• a defendant falsely represents that he is acting on behalf of a person legally authorized to prescribe a drug (e.g., 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.²

2. Are there defenses to Business & Professions Code 4323?

A person accused under 4323 BP can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses are:

1. no electronic or telephonic statement;
2. no representation involving a physician; and/or,
3. duress.

2.1. No electronic or telephonic statement

Please recall that a person can only violate the law if he makes a false representation to a pharmacist either electronically or over the telephone. This means it is a legal defense for a defendant to show that while he made a false statement, it was not in a telephone or electronic communication. This would apply, for example, if a person made a false representation in a person-to-person conversation.

2.2. No representation involving a physician

Please also recall that a person commits a crime under BP 4323 if he falsely represents that he is a physician or acting on behalf of a physician (or a person legally authorized to prescribe a drug). Therefore, there is no crime if a statement or representation does not mention a physician or a person who can legally write a prescription.

2.3. Duress

To best understand this defense, think of a case where a bank robber holds a pedestrian at gunpoint and tells him to get into a running car and drive them away.

Duress is a legal defense in which an accused basically says: “He made me do it.” The defense applies to the very limited situation in which a person commits a crime (here, making a false statement to obtain a drug), because somebody threatened to kill him if the crime was not committed.

3. What are the penalties?

A violation of BP 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 $1,000.³

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

4. Are there related offenses?

There are three crimes related to making a false representation to get a drug. These are:

1. doctor shopping – HSC 11173;
2. possession of a prescription blank – HSC 11162.5; and,
3. forging or altering a prescription – BPC 4324.

4.1. Doctor shopping – HSC 11173

It is a crime in California, per Health and Safety Code 11173 HS, for a person to doctor shop to get a drug.

HSC 11173 doctor shopping/prescription fraud occurs when a patient obtains or attempts to obtain a prescription for controlled substances through either:

• fraud, deceit, misrepresentation, or subterfuge; or
• the concealment of a material fact.⁴

A “controlled substance” means any substance listed on the five classification schedules of federal and California drug laws.⁵

Doctor shopping is a wobbler under California law, meaning that it can be charged as either a misdemeanor or a felony.

Misdemeanor prescription fraud is punishable by up to one year in county jail.⁶

Felony prescription fraud carries a potential jail sentence of:

• 16 months,
• two years, or
• three years.⁷

4.2. Possession of 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.

HSC 11162.5 makes it a crime for a person to counterfeit a prescription blank for a controlled substance, or, to knowingly possess one.⁸

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 Health and Safety Code 11162.5 is a type of wobbler offense, meaning that 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; and/or,
• a fine of up to $1,000.

If charged as a felony, the crime is punishable by imprisonment in a county jail for a term 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 Business and Professions Code 4324, to forge or alter a prescription.

In particular, Business and Professions Code 4324 makes it a crime for a person 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

---

Legal References: