Prescription fraud can be charged as forgery

Listen to this article

Obtaining a prescription by fraud can be prosecuted under Wisconsin’s generic forgery statute, sec. 943.38.

The Wisconsin Court of Appeals held on Jan. 14 that because a prescription is a writing that creates “legal rights,” altering a prescription is forgery.

Rene L. Fortun was charged in Vernon County Circuit Court with forgery. The complaint alleged that she took a prescription for 60 pills of the drug Tramadol and altered it to authorize 120 pills.

Fortun moved to dismiss the charge, and Circuit Court Judge Michael J. Rosborough granted the motion.

The State appealed, and the Court of Appeals reversed in an opinion by Judge Paul Lundsten.

Section 943.38(1)(a) makes it a Class H felony to make or alter, with intent to defraud, “A writing or object whereby legal rights or obligations are created, terminated or transferred…”

The court framed the issue as whether a prescription is a writing “by which legal rights or obligations are created or transferred.”

The court concluded it was, because it is a crime to dispense a prescription drug without a prescription order.

The court reasoned, “the prescription Fortun obtained from her doctor created a legal right for any pharmacist, presented with the prescription, to dispense 60 Tramadol pills to Fortun without violating the law. Absent the prescription, Fortun’s pharmacist had no legal right to give her any Tramadol pills.”

“There is no ambiguity in the statute as it applies here,” the court added. “The words ‘legal rights’ plainly cover the right to dispense prescription drugs without violating the law.”

Todd E. Schroeder, Fortun’s attorney, argued that the definition was ambiguous, because Wisconsin has two other statutes directly concerning prescription forgery.

Section 961.43 makes it a Class H felony to obtain controlled substances via a forged prescription; and sec. 450.11 makes it a misdemeanor, if the drug requires a prescription, but is not classified as a controlled substance (a class that includes Tramadol).

Schroeder also noted that the general forgery statute is included in Chapter 943, which governs property crimes – and the crime here was not a property crime.

But the court disagreed that the forgery statute applies only to property crimes.

“We agree with the State that the fact that the forgery statute applies to writings creating property rights does not mean that it applies only to such writings (emphasis by court).”

Schroeder said he is undecided whether he will seek review in the Wisconsin Supreme Court, but stated, “to say the forgery statute covers prescription orders, although the statute says nothing about it on its face, doesn’t make sense to me.”

Analysis

The court’s opinion effectively eviscerates the Legislature’s distinction between obtaining controlled substances via prescription forgery and obtaining non-controlled substances via prescription forgery.

For controlled substances, the penalties are the same. Both forgery under sec. 943.38, and obtaining a controlled substance by forgery, are Class H felonies (6 years imprisonment and a $10,000 fine).

However, if a drug requires a prescription, but is not a controlled substance, the Legislature has created a lesser penalty. Section 450.11 provides a maximum penalty of only a $500 fine and six months imprisonment.

In light of the court’s opinion, however, this very significant distinction is effectively eliminated – any prescription fraud, whatever the nature of the drug obtained, can be punished as a felony.