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Health and Safety Code Section 11368

According to HS 11368, it is unlawful to forge (falsify) or modify a prescription. In fact, this law makes it illegal to even verbally suggest or represent a fake prescription as real. Additionally, obtaining and possessing narcotic drugs acquired via a fake prescription is unlawful.

HS 11368 is known as a "Wobbler," which means it can be charged as a felony or misdemeanor. The potential jail time ranges from six months in county jail to three years in prison, pursuant to PC 1170(h).

The DA must establish the following in a HS 11368 prosecution:

  • The defendant modified a prescription or forged it; or
  • Gave a prescription to someone that was altered in some way (such as a fake signature); or
  • Attempted to use an altered prescription to get medication (or successfully obtained the drugs using the prescription); and
  • The forged / modified prescription was for a narcotic substance; and
  • The defendant was aware of the character of the modified prescription (in cases where the prescription was forged or altered by a third party)

If the DA alleges that the defendant possessed a narcotic drug obtained with a false prescription, the following must be proved:

  • The defendant possessed a narcotic drug (or obtained one);
  • The defendant was aware of the presence of the drug;
  • The defendant was aware of the drug’s character (that it was a narcotic);
  • The drug was found in a “usable amount;”
  • The drug was acquired using a fictitious, modified, or fake prescription;
  • The defendant was aware that the narcotic was acquired using the modified or fake prescription

The term “usable amount” does not mean it had to have an effect on the user; simply that it was a large enough amount of the narcotic to be used at all. Moreover, knowledge of the name of the actual drug is not necessary – however, the person does have to know that it is a narcotic drug.

Numerous potential defenses may be available that an experienced attorney can argue:

  1. The prescription was legitimate
  2. No knowledge that the prescription was altered or forged
  3. No knowledge the drugs were obtained by forged or altered prescription
  4. No knowledge of presence of the drugs
  5. Possessed the forged or altered prescription but never tried to use it
  6. The drugs were obtained in violation of federal and state search and seizure laws

If you or someone you know has been charged with HS 11368, contact my office today. I will provide a free, confidential consultation.