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Health and Safety Code Section 11368 - Forged Prescription to Obtain a Narcotic Drug

Heroin became the most popular drug abused by Americans in 2015, surpassing methamphetamine and cocaine. One reason has been the rise in abuse of prescription painkillers – Vicodin, OxyContin, Percocet, Morphine, Codeine, etc. For some, heroin has become the default drug of choice when they can no longer obtain prescription painkillers legally; however, not everyone decides to use heroin or some other "street drug" when they are unable to legally obtain prescription painkillers. This may lead them to obtain the prescription painkillers through some type of forged or altered prescription.

Prop 47 reduced unlawful possession of prescription drugs to a misdemeanor, HS 11350; however, Prop 47 does not apply to obtaining the prescription drug in violation of HS 11368. HS 11368 is a "Wobbler" which means it can be prosecuted as a misdemeanor or felony – resulting in up to one year in county jail or three years in prison, respectively.

For the prosecutor to prove that someone is guilty of obtaining a narcotic drug with a fictitious, forged, or altered prescription, they must demonstrate each of the following:

  1. The defendant obtained or had possession of a narcotic drug;
  2. They were aware of the substance's presence;
  3. They knew of its nature or character as a narcotic drug;
  4. The narcotic drug was in a usable amount;
  5. The substance was obtained using a forged, fictitious, or altered prescription; and
  6. The defendant knew that the narcotic drug was acquired using the forged, fictitious, or altered prescription.

Defenses for a Forged Prescription Charge

Many defenses may be available for someone accused of using a forged prescription to acquire narcotics, depending on the facts and circumstances of a case. An issue may be whether the quantity possessed was a usable amount. If the amount was trace or debris, it would not qualify as a usable amount under HS 11368. Whether or not the person was in possession of the drugs is another issue. Procedural defenses that include unlawful searches and seizures in violation of the 4th Amendment are typically an issue when defending against an allegation of HS 11368. This is small sample of potential defenses, and more may be applicable to your case.

If you are under investigation or have been charged with HS 11368, contact my office today. I will provide a free, confidential consultation.