Criminal Diversion of Prescription Medication

Criminal Diversion of Prescription Medication is the transfer of prescription medication through any unlawful channel. Diversion of prescription medication can happen for both financial and personal reasons. It is estimated that 15% of pharmacists, 10% of nurses, and 8% of physicians have alcohol and/or drug dependency. Thus, diversion of prescription medication may happen because of a medical provider’s dependency, rather than the desire to make a profit.

Under New York Law, there are four degrees of Criminal Diversion of Prescription Medications and Prescription. Specifically these charges are:

The difference in these charges depends on the value of the benefit, or the value of the prescription medication diverted or distributed through unlawful channels. Importantly, all these New York prescription diversion charges require the commission of a “Criminal Diversion Act.”

What is a Criminal Diversion Act?

Definition of the legal term “Criminal Diversion Act” comes from New York Penal Law Section 178.00(3). Under NY Penal Law Section 178.00(3), a Criminal Diversion Act means an act or acts in which a person knowingly:

  • Transfers or delivers, in exchange for consideration a prescription medication or device, while knowing that the other person has no medical need for it; OR
  • Receives, in exchange for anything of value, a prescription medication or device while knowing that the seller or transferor is not authorized by law to sell or transfer such prescription medication or device; OR
  • Transfers or delivers a prescription in exchange for anything of value; OR
  • Receives a prescription in exchange for anything of pecuniary value.

What Is the Legal Definition of “Prescription Medication or Device?”

The definition of “Prescription Medication or Device” comes from New York Penal Law Section 178.00(1). It means “any article for which a prescription is required in order to be lawfully sold, delivered or distributed by any person authorized by law to engage in the practice of the profession of pharmacy.”

What Is the Legal Definition of “Prescription?”

The term “Prescription” is defined in New York Penal Law Section 178.00(2). It means “a direction or authorization by means of a written prescription form or an oral prescription which permits a person to lawfully obtain a prescription medication or device from any person authorized to dispense such prescription medication or device.” As the only requirement is that the prescription be “written,” this provision applies to both old-school handwritten scripts and e-subscriptions.

Criminal Diversion of Prescription Medication Charges Explained

There are four different New York Criminal Diversion of Prescription Medication charges. The primary difference between them is value of the prescription medication or a prior conviction for prescription diversion by the defendant.

Criminal Diversion of Prescription Medications and Prescription in the Fourth Degree (PL 178.10)

Under New York Penal Law Section 178.10, a person is guilty of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree when he or she commits a criminal diversion act.

Criminal Diversion Act is defined as receiving or selling a prescription for anything of value while knowing, or having reason to know that either:

  • The person buying has no medical need for it, OR
  • The person selling it is not authorized to sell it by law.

Penalties and Sentencing for Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree

Under New York Law, Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree is the least serious of all criminal diversion charges. It is a Class “A” misdemeanor. As such, this charge is punishable by:

  • Up to 1 year in prison;
  • Probation of up to 3 years;
  • Time Served (even if that’s only from arrest to seeing the judge for arraignment);
  • Conditional Discharge (conditions of the sentence set by the judge, such as drug counseling, completion of community service, attendance of education programs);
  • Unconditional Discharge (no sentencing conditions set by the Court).

Criminal Diversion of Prescription Medications and Prescription in the Third Degree (PL 178.15)

The New York charge of Criminal Diversion of Prescription Medications and Prescription is codified in NY Penal Law Section 178.15. Under New York Penal Law 178.15, a person is guilty of Criminal Diversion of Prescription Medications and Prescriptions in the Third Degree when he or she:

  1. Commits a criminal diversion act, AND the value of the benefit exchanged is in excess of $1,000; OR
  2. Commits the crime of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, AND has previously been convicted of the crime of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree.

Penalties and Sentencing for Criminal Diversion of Prescription Medications and Prescription in the Third Degree

Criminal Diversion of Prescription Medications and Prescriptions in the Third Degree is a Class “E” Non-violent Felony. As such, this charge is punishable by:

  • Up to 1 1/3 to 4 years in prison;
  • A determinate jail term of 1 year or less;
  • A split sentence (up to 6 months prison, rest of the time on probation);
  • Probation (3, 4, or 5 years in duration);
  • A conditional discharge (with the sentencing court setting conditions – 3 years);
  • An unconditional discharge (no conditions needed as part of the sentence).

Criminal Diversion of Prescription Medications and Prescription in the Second Degree (PL 178.20)

The charge of Criminal Diversion of Prescription of Medications and Prescription in the Second Degree can be found in New York Penal Law Section 178.20. To convict someone of Criminal Diversion of Prescription of Medications and Prescription in the Second Degree, the prosecutor must prove two elements beyond a reasonable doubt.

  • First, the person committed a criminal diversion act; AND
  • Second, the value of the benefit exchanged is in excess of $3,000.

How is the Value of the Benefit Calculated?

There is no specific way by which the prosecutor is required to calculate the value of the benefit for the diversion of prescription medication charge. Specifically, there is no guidance in New York Penal Law, nor is there guidance in New York’s Pattern Jury instructions.

Case law shows that the value of the benefit exchanged can be calculated based on either:

  • What the prescription medications sold for, OR
  • What the street value of medication is.
Example of Calculating Value of Benefit:

A pharmacist knowingly fills a fraudulent prescription for 100 30mg oxycodone pills. Sam pays $100 cash for the prescription medication. Sam resells 100 pills at $45 each, making $4,500 or a profit of $4,400. The value of the benefit in this example is $4,500 because there is no special carve out in the statute that would allow for the cost of the prescription medication to be subtracted.

With that being said, whenever the value of the prescription medication is on the statutory cusp (let’s say close to $3,000 for this charge), the defense will likely be asking for a creative jury instruction in order to bring the value of the benefit below the statutory requirement.

Penalties and Sentencing for Criminal Diversion of Prescription Medications and Prescription in the Second Degree

Under New York Law, Criminal Diversion of Prescription Medications and Prescriptions in the Second Degree is a Class “D” Non-Violent Felony. As such, this charge is punishable by:

  • Up to 2 1/3 to 7 years in prison (indeterminate sentence);
  • A determinate sentence of up to 1 year in prison;
  • A split sentence (up to 6 months jail, rest of the time on probation);
  • Probation (5 years);
  • A conditional discharge (3 years).

Criminal Diversion of Prescription Medications and Prescription in the First Degree (PL 170.25)

The most serious of the New York Criminal Diversion Statutes for Prescription Medications is Criminal Diversion in the First Degree. This charge is codified in New York Penal Law Section 170.25. Under New York Penal Law Section 170.25, a person is guilty of Criminal Diversion of Prescription Medications and Prescriptions in the First Degree when he or she:

  1. Commits a criminal diversion act, AND
  2. The value of the benefit exchanged is in excess of fifty thousand dollars.

Penalties and Sentencing for Criminal Diversion of Prescription Medications and Prescription in the First Degree

Criminal Diversion of Prescription Medications and Prescriptions in the First Degree is a Class “C” Non-violent Felony. As such, this particular charge is punishable by:

  • Up to 5 to 15 years in prison;
  • Determinate sentence up to 2 years in prison;
  • Probation;
  • Split sentence;
  • Conditional discharge.

Is Anyone Exempt from Prosecutions for Criminal Diversion of Prescription Medication?

The New York Criminal Diversion of Prescription Medication Statute contains several exceptions to prosecution. The following groups of people cannot be convicted of diversion of prescription medication. However, it is important to note that it is a requirement that they were acting in good faith and in the lawful course of business of their profession:

  1. A duly licensed physician or other person authorized to issue a prescription acting in good faith in the lawful course of his or her profession; AND
  2. A duly licensed pharmacist acting in good faith in the lawful course of the practice of pharmacy; AND
  3. A person acting in good faith seeking treatment for a medical condition or assisting another person to obtain treatment for a medical condition.

Charges Related To Criminal Diversion of Prescription Medication

Frequently, diversion of prescription of medication charges are accompanied by other New York Criminal charges. Related charges may include:

Fraud and Deceit Related to Controlled Substances (PL 178.26)

This New York charge makes it a crime to obtain a controlled substance or a prescription for a controlled substance on the basis of fraud, receipt, misrepresentation, or concealment of material fact. This charge is a class “A” Misdemeanor and is punishable by up to 1 year in prison.

Criminal Possession of Forged Instrument

Under New York law, it is a crime to possess a forged instrument with intent to defraud, deceive or injure another. This charge is applicable to possession of forged prescriptions. The severity of the charge depends on the conduct associated with the use of the forged prescription.

Petit Larceny or Grand Larceny

If the obtained prescription medication was stolen, charges or Petit Larceny or Grand Larceny may be brought. The severity of the charges brought depends on the value of the property that has been stolen. If the value is under $1,000, the appropriate charge is Petit Larceny. If the value is over $1,000, the appropriate charge is Grand Larceny.

The charge of Petit Larceny is a Class “A” Misdemeanor. As such, it is punishable by up to 1 year in prison. Grand Larceny Charges are broken up into four different degrees, based on the value of the property. As all Grand Larceny charges are felonies, they are all punishable by over 1 year in prison.

Statute of Limitations for New York Criminal Diversion of Prescription Medication Charges

Under New York Law, the statute of limitations for Criminal Diversion of Prescription Medication charges is either 2 years or 5 years. The length of the statute of limitations period depends on the severity of the charge – whether it’s a felony or a misdemeanor.

Criminal Diversion of Prescription Medication in the Fourth Degree is a Class “A” Misdemeanor. As such, it has a 2 year statute of limitations, Criminal Diversion of Prescription Medication in the Third, Second and First Degree are felonies, and therefore have a 5 year statute of limitations.

Collateral Consequences of a Criminal Conviction for Diversion of Prescription Medication

Whether you are a physician, a pharmacist, a nurse or another licensed medical professional, a conviction or a plea to New York diversion of prescription medications may result in collateral consequences to your medical license. We have relationships with healthcare counsel, who frequently advise us and our clients on licensing implications of the plea on the criminal case. If you have any state-issued license, you need to alert your attorney. That way, all the collateral consequences of your plea can be analyzed.

Although not often, but sometimes state prosecutors take licensing considerations into account when extending a plea on the criminal case. However, it is essential that your attorney is fully aware of all aspects of you and your life, even though they do not directly relate to your criminal case.

Contact Top Rated Criminal Diversion of Prescription Medication Attorneys Today

If you have been charged or suspect that you are under investigation for diversion of prescription medication, time is of the essence. You need criminal counsel with extensive experience defending drug and prescription fraud and diversion charges. We are former prosecutors who have handled numerous cases of such nature, including many which involved medical professionals. Please call us at 212-729-9494 or contact us today to schedule a consultation regarding your case.