In an earlier article on this Blog, I noted that there is a definite increase, at least in my Criminal Practice, in the number of cases involving prescription medication, and particularly in those involving Vicodin and Oxycontin. These drugs have, in recent years, become part of the menu of drugs used recreationally. In years past, it was more common to find someone with a residual habit caused by having to legitimately take these drugs for a real medical condition. In those cases, the reliance on the drugs continues after whatever condition for which they were originally prescribed has cleared up. Pretty much every celebrity in the papers reported going to rehab claims to have a problem with prescription painkillers as a result of some injury.
While the number of Possession of Analogue cases has skyrocketed, the number of cases arising from the act of getting, or trying to get these drugs, has also soared. Perhaps the most common charge is what is known as a Fraudulent Prescription charge. This can involve anything from trying to call in a phony prescription, pretending to be from a Doctor’s office, to using stolen prescription pads, or just being the person who appears at the pharmacy to pick up a script.
Before we look at the legal implications of such a charge, let’s look at some of the common telltale signs seen by pharmacy employees as they detect these kinds of fraud.
It goes without saying that there are certain drugs which raise suspicion far more than others. People don’t get high on anti-biotics, so a phone call, supposedly from a Doctor’s office, for a 7 day supply of an antibiotic is far less likely to arouse any curiosity than a phone call for a large supply of Vicodin.
I recently spoke with a Doctor who told me of a case where a local pharmacy had called him to verify a prescription in his name for 100 Vicodin. The Doctor confirmed the pharmacy’s suspicion when he indicated that even in the most serious of injuries, he would never prescribe more than 60 at any time. The pharmacy thought the number was unusual, and the phone call confirmed that. The same Doctor told me how his prescription pads, with his DEA number on it, has been duplicated and stolen countless times, despite all the precautions he takes to safeguard against that.
Legally speaking, it is not uncommon for someone arrested for Fraudulent Prescriptions to subsequently be found to have been engaging in the practice for some time. In other words, once the Police start looking into the State database (formally known as Michigan’s Prescription Drug Monitoring Program, and it’s tracking mechanism, called MAPS) where all prescriptions are archived, they often find a person has been prescribed an unusually large amount of these drugs, sometimes from the same Doctor’s office to different pharmacies, other times from supposedly different sources to an even larger number of pharmacies. By the time many people resort to using phony scripts to obtain these drugs, they have developed a serious dependence on them.
Thus, it’s fair to think that any prescription for painkillers such as Vicodin or Oxycontin will automatically trigger a heightened sense of caution on the part of the pharmacy to which it is submitted. Add to that all the things that would make a normal person wonder about the legitimacy of prescription, such as one from a Doctor’s office far away, or a phone-call from a Doctor’s office that doesn’t regularly do scripts by phone, and you can see that in their quest to obtain these drugs, many users overlook what would seem obvious to anyone else.
Over the years, I have seen as the investigation of these cases has turned up everything from multiple prescriptions to the same person, to multiple prescriptions under different names, all for the same person. I have had cases where a friend or family member has sympathetically agreed to allow their name to be used for the script because they think the other person is really in need of these drugs, but perhaps doesn’t have insurance to pay for them.
The problem with a Fraudulent Prescription charge is that it is a Felony with no legally built-in mechanism to keep it off of a person’s Record. Contrast this with the actual Possession these drugs (called Analogues), where a person with no prior Drug Record can keep the charge completely off their Record using what’s known as a “7411.” Thus, in cases where the evidence against the Defendant is overwhelming, and there is no real likelihood of fighting the charge and winning, I will always try to have the Prosecutor agree to amend the charge to the actual Possession of the Drugs so that I can keep my Client from getting a Felony Record.
The biggest obstacle to doing this lies in the fact that the actual Possession of these Drugs is a charge that’s known as a 2 year Felony, whereas the Fraudulent Prescription charge is punishable by up to 4 years in Prison. Only Habitual Felons have any real chance of seeing Prison time for such an offense, and even second-time offenders (much less first-timers), are treated more as being in need of help rather than in need of being locked up.
As a Lawyer representing people who face these charges, and because I have handled quite of few of these cases, the most important, and realistic concern I have for anyone dealing with such a charge is their ability to get off, and stay off the drugs. Working out deals, keeping people out of jail, and keeping their Records clean are all fairly routine for me, but all of that effort goes out the window if a person on Probation for one Prescription crime gets charged with another, or tests positive for these drugs as part of their Probation. Getting completely clean of these drugs is difficult, and is probably life-altering, but at the point where a person is in Court over these drugs and their related charges, they need to understand that they’ll be under a microscope and that staying clean will be accomplished either voluntarily, or not, at least as long as the Court has jurisdiction over them.