Is Altering Refills a Criminal Act?

Author: Larry M. Simonsmeier, JD, RPh

Issue of the Case

In this month's case, a Minnesota court was asked to determine when altering the number of refills on a prescription becomes a criminal act.

Facts of the Case

The defendant in this case was the friend of a patient who had received prescriptions for penicillin and hydrocodone/acetaminophen following a visit to the dentist. The friend had accompanied the patient to the dentist and also went to the pharmacy with her to have the prescriptions filled.

The pharmacist noticed that the number of refills on both prescriptions had been changed so that "0"refills became "8"refills. The pharmacist called the dentist, who confirmed that he had indicated 0 refills on each prescription. While the defendant and the patient were still in the pharmacy, the pharmacist called the police.

The patient told the responding police officer that she was unaware of any problems with the prescriptions. When the officer queried the defendant, she admitted that she had altered the prescriptions when the patient was not looking because she believed that the patient needed more antibiotics and pain relievers than the dentist had prescribed.

The defendant contacted the police the next day and changed her story. She claimed that the patient was going to change the prescription to indicate 10 refills, but she advised the patient to make the "0"an "8"instead. The defendant only admitted to giving the patient a pen to make the change and then simply told her that the altered prescriptions "looked fine."

The Court's Ruling

The defendant was charged with attempting to procure a controlled substance through fraud or deceit. The trial court dismissed the case for lack of probable cause. The appellate court affirmed the dismissal.

The Court's Reasoning

In dismissing the case, the Minnesota Court of Appeals noted that, under the law, an attempt requires both intent and a substantial step, beyond the mere altering of the number of refills, toward the commission of a crime. In this case, the presentation of the original prescription, if successful, would have resulted in the patient receiving only the authorized prescribed dose of the medication.

In the court's view, a criminal act would not take place until the defendant made a second appearance at the pharmacy to obtain an illegal refill. The defendant had the intent to illegally acquire a controlled substance, but merely altering the number of refills did not yet amount to a substantial step toward illegally procuring the drug.

It should be noted that the same set of facts in another jurisdiction could well result in a different decision. The question then becomes, at what point in time has a refill-altering person done enough to commit a criminal act? This court determined that this act would not occur until a request for an illegal refill was made.

One can well imagine the possible legal pressure on a pharmacist who dispenses a prescription that he or she knows or should have known was not legitimate under the Controlled Substances Act. Yet, the defendant in this case suffered no legal consequences. The logic does not follow. What is good for the goose should be good for the gander. The risk is such that a pharmacist should error on the side of caution and refuse to fill a prescription that has been altered, even if courts believe that no crime has yet occurred.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.