What happens when health care professionals illegally obtain prescription drugs for their own use?
Health care professionals (doctors, nurses, nursing assistants, etc.) are people too. They have health problems just like their patients. The difference is that a patient needs to go to a doctor to get a prescription drug, but a doctor can prescribe it himself, and other health care professionals either have access to the drugs without first obtaining a prescription, or can access prescription forms (paper or on-line) and forge a prescription.
When a health care professional writes a prescription to a fictitious person and gets the medications for himself, or writes a prescription to a real person but diverts the medications to himself, this is known as “prescription drug fraud.” The elements of this crime are set forth in VA Code §18.2-258.1: Obtaining drugs, procuring administration of controlled substances, etc., by fraud, deceit or forgery.
Below, I have reprinted the Code section for the reader’s review and have put in bold the portions I believe are relevant to most of the health care provider prescription drug charge cases that I have handled. In summary, to prove guilt of Prescription Drug Fraud, the Commonwealth (the Prosecutor) must show, beyond a reasonable doubt: (1) That the defendant obtained a prescription drug (e.g. Percocets, Oxycodone) by either (i) Fraud, deceit, misrepresentation, embezzlement, or (ii) by representing himself to be the person authorized to write the prescription.
VA Code § 18.2-258.1. Obtaining drugs, procuring administration of controlled substances, etc., by fraud, deceit or forgery.
- It shall be unlawful for any person to obtain or attempt to obtain any drug or procure or attempt to procure the administration of any controlled substance or marijuana: (i) by fraud, deceit, misrepresentation, embezzlement, or subterfuge; (ii) by the forgery or alteration of a prescription or of any written order; (iii) by the concealment of a material fact; or (iv) by the use of a false name or the giving of a false address.
- It shall be unlawful for any person to furnish false or fraudulent information in or omit any information from, or willfully make a false statement in, any prescription, order, report, record, or other document required by Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1.
- It shall be unlawful for any person to use in the course of the manufacture or distribution of a controlled substance or marijuana a license number which is fictitious, revoked, suspended, or issued to another person.
- It shall be unlawful for any person, for the purpose of obtaining any controlled substance or marijuana to falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian or other authorized person.
- It shall be unlawful for any person to make or utter any false or forged prescription or false or forged written order.
- It shall be unlawful for any person to affix any false or forged label to a package or receptacle containing any controlled substance.
- This section shall not apply to officers and employees of the United States, of this Commonwealth or of a political subdivision of this Commonwealth acting in the course of their employment, …
The statute goes on to say that the punishment is a Class 6 Felony. This is the smallest felony and is punishable by
For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
Also, embedded into §18.2-258.1, is a very helpful paragraph H. It has an alternate punishment of a Class 1 Misdemeanor for those who plead guilty and complete a drug program.
- Except as otherwise provided in this subsection, any person who shall violate any provision herein shall be guilty of a Class 6 felony.
Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed, or reduced as provided in this section, pleads guilty to or enters a plea of not guilty to the court for violating this section, upon such plea if the facts found by the court would justify a finding of guilt, the court may place him on probation upon terms and conditions.
As a term or condition, the court shall require the accused to be evaluated and enter a treatment and/or education program, if available, such as, in the opinion of the court, may be best suited to the needs of the accused. This program may be located in the judicial circuit in which the charge is brought or in any other judicial circuit as the court may provide. The services shall be provided by a program certified or licensed by the Department of Behavioral Health and Developmental Services. The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, evaluation, testing and education, based upon the person’s ability to pay unless the person is determined by the court to be indigent.
As a condition of supervised probation, the court shall require the accused to remain drug free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug free. Such testing may be conducted by the personnel of any screening, evaluation, and education program to which the person is referred or by the supervising agency.
Unless the accused was fingerprinted at the time of arrest, the court shall order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting.
Upon violation of a term or condition, the court may enter an adjudication of guilt upon the felony and proceed as otherwise provided. Upon fulfillment of the terms and conditions of probation, the court shall find the defendant guilty of a Class 1 misdemeanor.
The #1 goal of any criminal defense attorney who is doing his/her job is to get the charge dismissed. If you want a dismissal, there are only two ways to get that. 1. Get the Prosecutor to drop the charge. This is called a “nolle prossequi” which is Latin for “Not Prosecute,” or 2. Go to trial and win.
If dismissal is not possible, then having the Prosecutor drop the charge to a Misdemeanor or getting the Judge to do so using subsection H are great outcomes. While having a Misdemeanor on your record is not desirable, and can cause loss or suspension of a health care state license, it is much much better than having a Felony. A Felony can have catastrophic consequences to job searches and can cause loss of certain government benefits. Also, a Felony causes, among other things, the loss of the right to vote and loss of the right to possess a firearm.
An experienced attorney such as the criminal defense attorney Phoenix
locals trust should be a paramount concern of a health care provider charged with prescription fraud. Many inexperienced lawyers don’t even know about subsection H. In addition, if you want a Prosecutor to drop the charge or to offer a Misdemeanor, then your attorney needs to show the Prosecutor that he may lose the case. Remember, a “Plea Bargain” has the word “bargain” in it. That means each side gets something. If a Prosecutor thinks he is going to win, then he is unlikely to drop the case or even offer to amend it to a Misdemeanor. Your experienced attorney needs to show the Prosecutor the weaknesses in the case in order to get the Prosecutor to “bargain.”