Fraudulent Attempt to Obtain A Controlled Substance
Fraudulently attempting to obtain a controlled substance is a class E felony, which means a person charged could serve a term of up to four years in prison. In general, the offense consists of knowingly obtaining or attempting to obtain a controlled substance or procuring or attempting to procure administration of a controlled substance, by means of fraud.
The statute, Section 579.045, defines several specific ways of committing the offense, but the list is declared non-exclusive:
(1) knowingly making a false statement in any prescription, order, report, or record, required by the Controlled Substances Law;
(2) for the purpose of obtaining a controlled substance, falsely assuming the title of, or representing oneself to be, an authorized person (manufacturer, wholesaler, pharmacist, physician, etc.);
(3) making or uttering any false or forged prescription or false or forged written order;
(4) affixing any false or forged label to a package or receptacle containing a controlled substance;
(5) possessing a false or forged prescription with intent to obtain a controlled substance.24
The statute precludes application of the physician-patient privilege to circumstances in which the defendant is attempting to obtain a fraudulent prescription.25 However, the privilege is expressly preserved for those situations in which a communication about the use of controlled substances is relevant to the treatment or surgery to be performed for the patient. The few reported cases indicate that prosecutions under this statute will involve forged prescriptions or misconduct by a doctor or pharmacist, such as selling prescriptions to enable other persons to acquire controlled substances for purposes other than treatment of a medical condition.26 Cases of this sort often depend on circumstantial evidence.
1 V.A.M.S. §§ 195.010(5), 195.017.
2 V.A.M.S. § 195.010(21)
3 V.A.M.S. § 195.017.
4 V.A.M.S. § 195.017.1.
5 V.A.M.S. § 195.017.3.
6 V.A.M.S. § 195.017.5.
7 State v. Burnett, 955 S.W.2d 785 (Mo. Ct. App. E.D. 1997).
8 State v. Clark, 490 S.W.3d 704 (Mo. 2016).
9 State v. Carson, 941 S.W.2d 518 (Mo. 1997)
10 V.A.M.S. § 579.020.1(1) to (4). For an example of an attempt to deliver, see State v. Pennell, 399 S.W.3d 81 (Mo. Ct. App. E.D. 2013) (defendant dispatched controlled substances via UPS but shipment intercepted by police).
11 V.A.M.S. § 195.010(8).
12 V.A.M.S. § 195.010(12).
13 V.A.M.S. § 579.020.5(1).
14 V.A.M.S. § 579.020.5(2).
15 Glover v. State, 225 S.W.3d 425 (Mo. 2007).
16 Cason v. State, 987 S.W.2d 357 (Mo. Ct. App. W.D. 1999).
17 V.A.M.S. §§ 579.055.1(1) to (3).
18 V.A.M.S. § 195.010(23). Attempted manufacture of a controlled substance can be established by proof of possession of materials used in the manufacture of the substance, plus proof of recent use of the materials and recent possession of the substance. State v. Metz, 43 S.W.3d 374 (Mo. Ct. App. W.D. 2001).
19 See State v. McLarty, 327 S.W.3d 557 (Mo. Ct. App. S.D. 2010) (evidence of attempt to manufacture methamphetamine sufficient; acting with another to accumulate all essential ingredients for manufacturer).
20 V.A.M.S. § 579.065.
21 State v. Cartwright, 884 S.W.2d 686 (Mo. Ct. App. S.D. 1994).
22 See State v. Wiley, 80 S.W.3d 509 (Mo. Ct. App. W.D. 2002) (with regard to possessory form of trafficking, defendant need not know that he is in possession of more than minimum weight of controlled substances; culpable mental state pertains only to element of possession itself).
23 State v. Pierce, 433 S.W.3d 424 (Mo. 2014) (instruction on lesser offense of possession required even if the evidence of weight is uncontroverted; jury can disbelieve anything).
24 V.A.M.S. § 579.045.1(1) to (5).
25 V.A.M.S. § 579.045.3.
26 State v. Myers, 870 S.W.2d 492 (Mo. Ct. App. E.D. 1994).
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