Jan. 15, 2010 – The Wisconsin Court of Appeals clarified yesterday the legal significance of a written drug prescription so that its alteration is punishable under the statute generally criminalizing forgery.
In State v. Fortun, 2009AP1172, Rene Fortun altered her doctor’s written prescription for 60 pills of Tramadol so that it appeared to authorize 120 pills and then obtained that greater amount from a pharmacist. She was charged under the forgery statute, Wis. Stat. sec. 943.38 (1)(a), which applies to writings creating “legal rights.” The circuit court dismissed the forgery charge, finding that the statute was ambiguous as to whether it applied to prescriptions.
The court of appeals held that the statute does apply because a written prescription creates the legal right to obtain drugs that otherwise would be unlawful to dispense.
Fortun argued that the legislature did not intend to punish this conduct under the general forgery statute when it had created other statutes to specifically target the offense. Specifically, Wis. Stat. sec. 961.43(1)(a) and (2) makes obtaining a controlled substance by forgery a Class H felony and obtaining a prescription drug by forgery is a misdemeanor under Wis. Stat. sec. 450.11(7) and (9)(a).
But the court of appeals disagreed. “Fortun’s underlying assumption seems to be that the legislature never intends to enact multiple criminal statutes covering the same conduct,” the court wrote. “This assumption is wrong.”
Quoting Wis. Stat. sec. 939.65, the court wrote, “In fact, the legislature has specifically contemplated overlapping criminal statutes and directed that, when ‘an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.’”
Likewise, the court rejected Fortun’s argument that State v. Henthorn, 218 Wis. 2d 526 (Ct. App. 1998), had implied that altering a prescription is not a forgery. In Henthorn, the court of appeals held that Linda Henthorn had not attempted to obtain a controlled substance by fraud when she presented an altered drug prescription just once, seeking no more than the first authorized prescription. “In reaching our conclusion in Henthorn, we broadly stated: ‘Altering a prescription, without more, is not a crime,’” the court of appeals wrote.
Fortun misinterpreted that statement, the court said. “Read in context, we were simply saying that, without more, altering a prescription does not constitute the crime of attempting to obtain a controlled substance by fraud or forgery,” the court explained. “Moreover, regardless what this court had in mind, our statement is dicta with respect to other crimes.”
