Section 11161 Of Article 1. Requirements Of Prescriptions From California Health And Safety Code >> Division 10. >> Chapter 4. >> Article 1.
11161
. (a) When a practitioner is named in a warrant of arrest or
is charged in an accusatory pleading with a felony violation of
Section 11153, 11154, 11156, 11157, 11170, 11173, 11350, 11351,
11352, 11353, 11353.5, 11377, 11378, 11378.5, 11379, 11379.5, or
11379.6, the court in which the accusatory pleading is filed or the
magistrate who issued the warrant of arrest shall, upon the motion of
a law enforcement agency which is supported by reasonable cause,
issue an order which requires the practitioner to surrender to the
clerk of the court all controlled substance prescription forms in the
practitioner's possession at a time set in the order and which
prohibits the practitioner from obtaining, ordering, or using any
additional prescription forms. The law enforcement agency obtaining
the order shall notify the Department of Justice of this order.
Except as provided in subdivisions (b) and (e) of this section, the
order shall remain in effect until further order of the court. Any
practitioner possessing prescription forms in violation of the order
is guilty of a misdemeanor.
(b) The order provided by subdivision (a) shall be vacated if the
court or magistrate finds that the underlying violation or violations
are not supported by reasonable cause at a hearing held within two
court days after the practitioner files and personally serves upon
the prosecuting attorney and the law enforcement agency that obtained
the order, a notice of motion to vacate the order with any
affidavits on which the practitioner relies. At the hearing, the
burden of proof, by a preponderance of the evidence, is on the
prosecution. Evidence presented at the hearing shall be limited to
the warrant of arrest with supporting affidavits, the motion to
require the defendant to surrender controlled substance prescription
forms and to prohibit the defendant from obtaining, ordering, or
using controlled substance prescription forms, with supporting
affidavits, the sworn complaint together with any documents or
reports incorporated by reference thereto which, if based on
information and belief, state the basis for the information, or any
other documents of similar reliability as well as affidavits and
counter affidavits submitted by the prosecution and defense. Granting
of the motion to vacate the order is no bar to prosecution of the
alleged violation or violations.
(c) The defendant may elect to challenge the order issued under
subdivision (a) at the preliminary examination. At that hearing, the
evidence shall be limited to that set forth in subdivision (b) and
any other evidence otherwise admissible at the preliminary
examination.
(d) If the practitioner has not moved to vacate the order issued
under subdivision (a) by the time of the preliminary examination and
he or she is held to answer on the underlying violation or
violations, the practitioner shall be precluded from afterwards
moving to vacate the order. If the defendant is not held to answer on
the underlying charge or charges at the conclusion of the
preliminary examination, the order issued under subdivision (a) shall
be vacated.
(e) Notwithstanding subdivision (d), any practitioner who is
diverted pursuant to Chapter 2.5 (commencing with Section 1000) of
Title 7 of Part 2 of the Penal Code may file a motion to vacate the
order issued under subdivision (a).
(f) This section shall become operative on November 1, 2004.