Drug Diversion & Theft

No two cases are alike, and there are a number of ways to defend or mitigate accusations of theft and drug diversion against a licensed healthcare professional. I have represented dozens of healthcare professionals accused of drug diversion—some guilty, some innocent— in both criminal and disciplinary investigations, especially those conducted by the Colorado Board of Nursing.

• Drug diversion and theft charges can be prosecuted criminally at the state or federal level, depending on a few factors. Many drug diversion cases are never prosecuted criminally, but any healthcare professional suspected of diversion faces, at minimum, a grueling process to defend their license from their board.
• Many state law enforcement agencies will not file theft charges or other criminal charges for drug diversion without a smoking gun, such as an admission by you, video evidence, quality eyewitness testimony, etc. Sifting through medication records and signatures, and trying to understand healthcare workflows around controlled substances, is too tedious and foreign to many detectives. But there is still risk of state prosecution, which does happen.
• The DEA and other federal resources (FDA and more) get involved in criminal investigation and prosecution when the scale or nature of the diversion warrants it. One example of a federal priority is tampering, such as when diversion is covered up by a professional replacing the diverted medication with saline, which can lead to a patient receiving saline instead of critical pain medication. Federal prosecution almost inevitably involves higher stakes than state prosecutions—they take the most serious cases, they investigate more thoroughly, and they have broad criminal statutes and harsh sentencing guidelines to use against you.
• To sustain criminal charges, the prosecutor must prove guilt beyond a reasonable doubt, which can be hard. To take action against your professional license, however, the Board of Nursing and other boards need only prove that more likely than not you did what you were accused of. And you do not have a 5th Amendment right to remain silent in board investigations—you can remain silent, but it will be used against your license. The many differences between criminal and board prosecutions require an attorney who can advise you on the complex tradeoffs involved in setting your defense strategy, and make sure that you are as protected as possible.
• Many of my clients are guilty—a mistake was made and now everything must be done to mitigate the damage, to save the person’s license and career. This usually starts with treatment and sobriety, as drug diversion is almost always a symptom of an underlying substance use disorder, not an attempt to enrich oneself. We must handle any licensing action in a way that does not increase the risk of criminal prosecution—one legal problem is better than two.
• Many of my clients are 100% innocent of drug diversion, but get swept up in a shoddy investigation by an employer with poor internal controls. Typically, there is a salient incident at a healthcare facility, or the management or pharmacy realize they have a large discrepancy in their inventory of controlled medications, and a witch-hunt follows where every nurse without perfect medication charting and minimal wasting gets terminated and reported to the Board. This happens frequently, and is a reason to not take jobs at employers with casual practices and controls around opioids—it will eventually be used against you. False accusations of drug diversion must be met with thorough responses, detailed reconstructions of the alleged medication incidents, identification of exculpatory medical records and witnesses, and more.
• If you are suspected of drug diversion at work, and are innocent, it is extremely helpful to privately obtain a hair follicle drug test (in addition to whatever testing your workplace requires) to rule out, as much as possible, the insinuation that you have been using controlled substances. Many professionals are shy about doing this because it may reveal prescription drug use or marijuana use. While it is true that prescription opioid use will make this HFT less useful in most situations, one should not be deterred by the presence of prescription mental health medications or marijuana use—neither of those present the threat to your livelihood that a suspicion of opioid or benzo diversion presents. Further, any marijuana use or prescription medication is already likely to come up during the investigation, as the board usually has the right to demand a behavioral health evaluation of a professional suspected of diversion.