NRS § 453.391 – Unlawfully Obtaining Prescription Drugs (Doctor Shopping)

1.  Unlawfully take, obtain or attempt to take or obtain a controlled substance or a prescription for a controlled substance from a manufacturer, wholesaler, pharmacist, physician, physician assistant, dentist, advanced practice registered nurse, veterinarian or any other person authorized to administer, dispense or possess controlled substances.

2.  While undergoing treatment and being supplied with any controlled substance or a prescription for any controlled substance from one practitioner, knowingly obtain any controlled substance or a prescription for a controlled substance from another practitioner without disclosing this fact to the second practitioner.

An NRS 453.391 allegation is prosecuted as a category C felony. The punishment is:

• 1 – 5 years in Nevada State Prison, and
• up to $10,000

However, the D.A. may be open to a plea bargain where the charge gets significantly reduced or dismissed. Common defenses are:

1. the defendant had a lawful prescription;
2. the medicine was over-the-counter;
3. the defendant did not knowingly doctor shop (the “oversight defense”); or
4. the defendant was the victim of police entrapment

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crimes of illegally taking a prescription drug and doctor shopping. Click on a topic to jump directly to that section:

• 1. Definition
• 2. Penalties
• 3. Defenses
• 4. Immigration consequences
• 5. Sealing records
• 6. Related offenses

1. Definition

NRS 453.391 makes it a Nevada felony crime to unlawfully obtain a controlled substance (or a prescription for a controlled substance) from either a:

• manufacturer,
• wholesaler,
• pharmacist,
• physician,
• physician assistant,
• dentist,
• advanced practice registered nurse,
• veterinarian, or
• any other person authorized to administer, dispense or possess controlled substances

And if a person currently has a lawful prescription, NRS 453.391 also makes it a felony to knowingly get another prescription from a second provider without telling that provider about the current prescription.

In short, Nevada law prohibits people from:

1. getting drugs or prescriptions without first having a lawful prescription, or
2. getting a new drug from a second doctor without telling him/her about any current prescriptions (a.k.a. “doctor shopping”)¹

2. Penalties

Violating NRS 453.391 is a category C felony, carrying:

• one to five (1 – 5) years in prison, and
• up to $10,000 in fines (at the judge’s discretion)²

People charged with this offense are encouraged to hire an attorney right away in attempt to negotiate the charges down to a lesser offense or a full dismissal if possible.

3. Defenses

Possible defenses to NRS 453.391 charges may include any of the following arguments:

1. The defendant had a lawful prescription, and prosecutors were mistaken to believe he/she received the drugs illegally.
2. The drugs the defendant obtained were over-the-counter and therefore not subject to NRS 453.391.
3. The defendant innocently forgot about having any current prescriptions. Therefore, the defendant did not act “knowingly” when he/she asked a second provider for more drugs without telling the provider about any current prescriptions. This is called the “oversight defense.”³
4. The defendant was entrapped, meaning that the defendant would not have obtained the drugs but for the police’s unlawful inducement.

In every criminal case, the prosecution bears the burden to prove guilt beyond a reasonable doubt. These cases typically involve such evidence as:

• surveillance video,
• doctor’s notes, and
• eyewitness testimony

If the defense attorney can prove that the D.A.s case is too weak to support a conviction, the case should be dropped.

4. Immigration consequences

Unlawfully obtaining drugs might be considered an aggravated felony or a crime involving moral turpitude (CIMT) by a Las Vegas immigration judge. Since aggravated felonies and CIMTs are deportable, aliens accused of violating NRS 453.391 should hire an attorney to try to negotiate a charge reduction to a non-deportable offense (if not a dismissal).

5. Sealing records

An NRS 453.391 conviction can potentially be sealed from the defendant’s criminal record five (5) years after the case closes. But if the charge gets dismissed so that there is no conviction, then the defendant can petition the court for a record seal right away. Learn more about Nevada record seal procedures.

6. Related offenses

6.1. Health care fraud

Health care fraud occurs when medical providers attempt to swindle insurance companies out of funds they are not legally entitled to. It is a category D penalty, carrying:

• one to four (1 – 4) years in prison, and
• up to $5,000 in fines (at the judge’s discretion), and
• restitution to the insurance company, and
• reimbursement to the government for investigating the case

6.2. Unlawful prescribing by medical providers

Unlawful prescribing, possessing, administering, transporting and dispensing controlled substances under NRS 453.381 is a category C felony. The penalty is:

• one to five (1 – 5) years in prison, and
• up to $10,000 in fines (at the judge’s discretion)

The Nevada Board of Medical Examiners can penalize the doctor as well. Learn more about license suspensions for doctors convicted of crimes.

6.3. Drug possession

Drug possession (NRS 453.336) depend on the types of drugs and whether the defendant has any prior possession offenses. Most first-time convictions of possessing drugs are category E felonies, which are usually probationable.

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