When someone acquires possession of a controlled substance through fraudulent means they may face significant criminal penalties. In order to acquire something, you must have possession of it. Possession can be summarized as having physical control of a drug. The most obvious example of possession is having it on your person. It is not necessary to have “physical” control of a substance to possess it.
Defining Fraud
Legally speaking, fraud is a deliberate act that uses deception to cause some form of damage. The consequences (damage) may be physical, financial, or some other kind of harm. Acts of fraud that are commonly committed involving controlled substances are acts of misrepresentation, forgery, or subterfuge.
Controlled Substances
When a substance is controlled, it is a drug or agent that is government regulated. This regulation extends into how the drug is manufactured, possessed, dispensed, or otherwise used. The term refers to illegal drugs and prescription products. At the federal level, the Controlled Substances Act was enacted in 1970 that created a list of these substances. The list is subject to continual changes and classifies the substances into Schedules I through V summarized below.
|
Examples |
Description |
|
|
Schedule I |
LSD, Peyote, Mescaline, Heroin |
Very likely to be abused--no medical purposes |
|
Schedule II |
Fentanyl, Methadone, Hydromorphone |
High potential to be abused--some medical purposes |
|
Schedule III |
Tylenol with Codeine, Anabolic Steroids |
Moderate potential for abuse—some medical purposes |
|
Schedule IV |
Phenobarbital, Valium, Xanax |
Lower potential for abuse—many medical purposes |
|
Schedule V |
Lyrica, Various Cough Suppressants |
Low potential for abuse--many medical purposes |
New Jersey Legislative Intent Regarding Drug-Related Crime
Agencies of law enforcement statewide are active in trying to curtail drug-related offenses. Dangerous controlled substances are a clear risk to overall public health and safety. New Jersey continues to have high levels of drug-related crime and is a hub for illicit drug trafficking and organized crime. Crimes commonly associated with drugs include serious offenses such as murder, robbery, burglary, and more.
Lawmakers have continued to enhance penalties for those convicted of drug-related offenses. In fact, these offenses are among those that carry mandatory minimum periods of incarceration without parole eligibility. For lower-level drug offenders and abusers, the state has implemented significant alternative and diversionary programs that are rehabilitative. This has included programs such as the establishment of drug courts, Pre-Trial Intervention (PTI), and “special” probationary measures.
The Opioid Crisis
Prescriptions for opioid pain medications began dramatically increasing around 2006 in the U.S. and peaked in 2012. At that point, the total prescription volume was approximately 255 million, which equated to a rate of 81.3 prescriptions filled for every 100 people. As abuse, addiction, and fatal drug overdoses surged, measures were taken to reduce the supply and better educate prescribers. In 2017, the total number of prescriptions fell to 191 million, which equates to 58.7 for every 100 people.
Prescription Drug Monitoring Program (PDMP)
Considerable progress has been made in the way that prescription medications are tracked. The PDMP is an electronic database that allows for tracking by prescribing physicians, pharmacies, and agencies responsible for monitoring and law enforcement. All prescriptions that an individual is receiving are centrally located to better prevent harmful drug interactions. In addition, it reduces the possibility of fraud among those who visit multiple doctors to obtain opioids.
Possession of a Controlled Substance (2C:35-10)
Those who have possession of a controlled dangerous substance must have a prescription from a licensed medical provider. Offenders who are convicted of drug possession charges may face charges of the third degree, fourth degree, or a disorderly person offense, depending on several factors.
Obtaining a Controlled Substance By Fraud (2C:35-13)
The offense is formally defined as acquiring or otherwise obtaining possession of a controlled substance by “misrepresentation, fraud, forgery, deception or subterfuge.” This includes acquiring possession by using a “forged or fraudulent certificate of destruction.” The crime is charged as a third-degree offense and the fine may be enhanced to $50,000 from the standard $15,000.
Elements of the Offense
Having obtained a controlled dangerous substance by fraud has three basic elements:
- The alleged offender must have attempted to obtain or actually gained possession of a controlled dangerous substance
- In order to attempt to obtain or gain possession, the alleged offender must have employed “misrepresentation, fraud, forgery, deception or subterfuge.”
- To prove the offense the alleged offender must have knowingly committed these actions
Black's Law Dictionary defines misrepresentation as simply delivering inaccurate or false information. The term subterfuge means using deception in order to accomplish a goal.
Understanding Forgery
The crime of forgery involves purposefully defrauding someone. In general terms, a forgery may occur by making alterations to someone else's writing without permission. It also may be conducted when someone “makes, completes, executes, authenticates, issues, or transfers” something that another person has written.
In this specific context, forgery is most likely to involve New Jersey Prescription Blanks that are forged in a manner to unlawfully obtain a dangerous controlled substance. It is also a third-degree offense to possess devices or equipment such as hardware or software that is designed to commit forgery. New Jersey Prescription Blanks are all sourced from a single supplier and contain multiple unique characteristics that prevent fraud similar to how U.S. paper currency is generated.
How Does Obtaining a Controlled Substance By Fraud Usually Occur?
The offender may have a sophisticated means of duplicating blank prescriptions or creating blank prescriptions that appear very similar. Often the offender will alter an actual prescription that was written by a medical provider. Someone may impersonate a patient or person that does not exist in order to obtain drugs. Theft of a physician's actual prescription pad has traditionally been common. Offenders may also resort to “faking” injuries or claiming to have lost their original prescription.
Standard Penalties for Offenses in New Jersey
|
Offense Level |
Incarceration Period |
Maximum Fine |
|
First Degree |
10 to 20 years |
Up to $200,000 |
|
Second Degree |
5 to 10 years |
Up to $150,000 |
|
Third Degree |
3 to 5 years |
Up to $15,000 |
|
Fourth Degree |
18 months |
Up to $10,000 |
|
Disorderly Person Offense |
6 months |
Up to $1,000 |
Attorney for Defending Allegations Related to Controlled Substances
Both federal and state legislatures have significantly increased their ability to detect these types of fraudulent activity and the penalties that may be imposed. Attorney Joseph D. Lento has been effectively defending clients faced with these and similar allegations for many years. Contact the office today at (888) 535-3686 for a consultation.
