Colorado Drug Crimes – Attempt To Obtain A Controlled Substance By Fraud Or Deceit – 18-18-415 and Doctor Patient Privilege

By H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer -Attorney

Colorado Drug Crimes – Attempt To Obtain A Controlled Substance By Fraud Or Deceit – 18-18-415 and Doctor Patient Privilege – Medical records such as prescriptions fall within the doctor-patient privilege. However, when you are charged with an Attempt To Obtain A Controlled Substance By Fraud Or Deceit under Section 18-18-415 CRS – the question is whether the State can obtain those records and use them against you at trial.

 

A recent Colorado case holds that a physician’s prescription order, prior to the “scripts” alleged alteration by a Defendant, IS usable at trial against the accused under Section 18-18-415(1)(b).

This statute provides a “statutory” exception to the usual privileged communications rules.

Colorado Criminal Code § 18-18-415. Fraud and Deceit

(1)(a) No person shall obtain a controlled substance or procure the administration of a controlled substance by fraud, deceit, misrepresentation, or subterfuge; or by the forgery or alteration of an order; or by the concealment of a material fact; or by the use of a false name or the giving of a false address.

(b) Information communicated to a practitioner in an effort to procure a controlled substance other than for legitimate treatment purposes or unlawfully to procure the administration of any such controlled substance SHALL NOT BE DEEMED A PRIVILEGED COMMUNICATION.

(c) No person shall willfully make a false statement in any order, report, or record required by this article.

(d) No person, for the purpose of obtaining a controlled substance, shall falsely assume the title of, or represent himself to be, a manufacturer, distributor, practitioner, or other person authorized by law to obtain a controlled substance.

(e) No person shall make or utter any false or forged order.

(f) No person shall affix any false or forged label to a package or receptacle containing a controlled substance.

(2) Any person who violates any provision of this section commits: (a) A level 4 drug felony and shall be punished as provided in section 18-1.3-401.5.

Here is a chart on the possible sentencing penalties for Colorado Drug Crimes:

 

 

 

 

 

 

 

 

 

 

 

 

Here is The Jury Instruction That Separates Out The Elements Of The Crime Of Obtaining a Controlled Substance by Fraud or Deceit

The elements of the crime of obtaining a controlled substance by fraud or deceit are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. obtained a controlled substance or procured the administration of a controlled substance,

4. by fraud, deceit, misrepresentation, or subterfuge; or by the forgery or alteration of an order; or by the concealment of a material fact; or by the use of a false name or the giving of a false address.

[5. and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]

After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of obtaining a controlled substance by fraud or deceit.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of obtaining a controlled substance by fraud or deceit.

The Colorado Physician-Patient Privilege In Prescription Fraud Cases

The issue is this – can the State of Colorado compel a doctor to reveal information about a specific prescription at the trial of a former patient of that doctor where the charge involves altering that prescription and alleging prescription fraud?

The answer is yes – this is no protection under Colorado’s physician-patient privilege in this situation. This evidence – such as a written prescription – later allegedly altered by the Defendant IS not privileged in light of section 18-18-415(1)(b)’s statutory exception to privileged communications.

The Doctor – Patient privilege is actually a law that is used by Defendant’s to prevent the use t trial of communications to medical professionals and medical records created during medical treatment against the patient on trial.

Here is Colorado’s Doctor Patient Privilege Law

Section 13-90-107(1)(d), C.R.S. 2014, defines Colorado’s physician-patient privilege:

“A physician, surgeon, or registered professional nurse . . . shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient.”

Other privileges I have written about within this same law – Colorado Testimonial Privileges 13-90-107 include the Priest-Penitent – and Husband-Wife Privilege.

The Physician- Patient Privilege is one of the broadest of all rights to confidentiality because it also encompasses “information acquired in attending the patient” and therefore is not limited to communications made by a patient to his or her doctor but includes hospital and medical records which fall well within the scope of the privilege.

For example mental health and associated alcohol and drug abuse treatment records are privileged also fall under the physician-patient and the psychologist-client privileges.

Now Enters The Statutory Exception Colorado’s Doctor Patient Privilege Law For Prescription Fraud Cases Under Section 18-18-415(1)(b) C.R.S.

Here is the statutory exception to privileged communications found in section 18-18-415(1)(b):

Section 18-18-415(1)(b) operates as an exception to the physician-patient privilege found at Section13-90-107(1)(d).

“information communicated to a practitioner in an effort to procure a controlled substance other than for legitimate treatment purposes or unlawfully to procure the administration of any such controlled substance shall not be deemed a privileged communication.”

The reason why an original prescription issued by a doctor to a Defendant who later alters that prescription ins NOT privileged is explained by the Colorado Court Of Appeals in this paraphrased holding:

Information communicated to a practitioner in an effort to procure a controlled substance, in section 18-18-415(1)(b) (the exception to the privilege) extends beyond statements made by a patient to his or her doctor to include medical records created to procure a controlled substance, which a defendant uses in an effort to unlawfully procure the controlled substance.

Therefore section 18-18-415(1)(b) applies to a doctor’s original prescription later altered by a Defendant who is then charged with Attempt To Obtain A Controlled Substance By Fraud Or Deceit – 18-18-415.

Colorado Drug Crimes – Attempt To Obtain A Controlled Substance By Fraud Or Deceit – 18-18-415 and Doctor Patient Privilege

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Drug Crimes – Attempt To Obtain A Controlled Substance By Fraud Or Deceit – 18-18-415 and Doctor Patient Privilege.