Forging a Prescription Law & Defense
HS 11368 Crimes
The laws on the crime of Forging or Altering a Prescription are found at California Health & Safety Code section 11368, and Business & Professions Code section 4324. The laws and punishments are vary similar for these offenses and differences are noted below.
To prove that the defendant is guilty of HS 11368 the district attorney must prove:
The defendant either forged or altered a prescription, and
The prescription was used for narcotics, and
The defendant knew that the prescription was forged or altered
It is a violation of HS 11368 even if the defendant is not the person who forged or altered the prescription if the defendant otherwise meets the other requirements for the offense (used the prescription to obtain narcotics while having knowledge that the prescription was forged).
The same is true if the defendant forged or altered a prescription but did not actually offer the prescription himself or herself. In other words, even if the defendant only forged or altered a prescription and gave it to someone else to use he or she is still criminally liable under HS 11368.
If the defendant actually obtains the drugs by way of the forged or altered prescription then the defendant may also be charged with additional criminal charges under HS 11368, because HS 11368 only deals with the actual forgery and not necessarily the receipt of the drugs or narcotics. BP 4324(b) covers crimes of possession of drugs by forged prescription.
Sentence for HS 11368 & BP 4324
Forging or Altering a Prescription may be charged under HS 11368 as a felony or as a misdemeanor. Whether the crime is charged as a felony or as a misdemeanor is within the control of the prosecuting attorney, but arguably, the two most important factors in decided the issue is the egregiousness of the criminal conduct and the defendant's criminal history.
Jail Sentence: When forging or altering a prescription is charged as a felony under HS 11368 the defendant may face up to three years in prison. When forging or altering a prescription is charged as a misdemeanor under HS 11368 the defendant may face up to one year in the county jail.
Note: Possession of Pharmaceuticals without a prescription (BP 4324) carries similar penalties to HS 11368.
Probation Sentence: A probation sentence is period of monitoring by the court or by a probation officer instead of actual jail. Probation sentencing is allowed in both HS 11368 and BP 4324 cases, but a probation sentence is not guaranteed. Whether or not the defendant is able to receive a probation sentence as opposed to a jail sentence depends on many factors, including the disposition of any plea bargaining that may or may not take place between the defendant's attorney and the district attorney.
PC 1170(h) Sentence: In HS 11368 cases, if the defendant is not granted a probation sentence after an HS 11368 conviction, then his or her incarceration must be served in a state prison, as opposed to a local county jail. In addition, no part of that sentence may be split or suspended.
CIMT: Forging a prescription is considered a crime involving moral turpitude, which means that the crime involves deceit. Crimes that involve moral turpitude can carry collateral punishments against a person's professional license (doctor, dentist, lawyer, etc.) or his or her immigration status (for non US citizens).
Three Strikes Law: Forging a prescription is not considered a strike offense in California.
In addition to the penalties listed above, if found guilty of HS 11368 or BP 4324(a), the defendant could face any of the following punishments: denial of entry into the US military, fines and fees, family law consequences (loss of the right to adopt, child custody issues, etc.), restitution, criminal protective orders, and more.
Common defenses to HS 11368 charges include: insufficient evidence to prove the defendant forged a prescription or knew the prescription he or she had in possession was actually forged, coerced confession, statute of limitations, and more.
If you have been charged with the California crime of forging or altering a prescription under HS 11368, or possession of drugs without a prescription under BP 4324, contact our criminal defense attorneys today for a free consultation.
Our criminal defense attorneys dedicate one hundred percent their law practice to criminal defense, and we have successfully handled hundreds of misdemeanor and felony crimes. Our attorneys are available everyday to answer all of your questions. Call today!
BP4324(a)-M Misdemeanor Forgery of Prescription
BP4324(b)-M Possession of Drugs by Forged Prescription
Quick Legal Reference
Crime: Forging a Prescription
Code: HS 11368 (CalCrim No. 2320-2321)
Wobbler: Yes. HS 11368 is a wobbler crime. This means that the crime may be charged as a felony or as a misdemeanor.
Incarceration: Felony HS 11368 prison sentence range: 16 months, 2 or 3 years jail. Misdemeanor jail sentence up to 1 year.
Probation: Probation is available in felony and misdemeanor HS 11368 cases (assuming that crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. Felony HS 11368 is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: HS 11368 is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: HS 11368 is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony HS 11368 convictions prohibit a defendant from owning or possessing a firearm.
Registration: If convicted of HS 11368, the defendant is required to register as a drug offender with local law enforcement.
Bail: $25,000 (San Bernardino County)
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