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Although DEA audits are routine procedures, they often result in criminal prosecution. In addition, if you violate the Controlled Substances Act, you are likely to face administrative measures against your DEA registration. It is therefore advisable for DEA registrants facing a DEA audit or investigation to consult a lawyer.
The DEA conducts audits and investigations to ensure the parties in question comply with the Controlled Substances Act (CSA). There are various reasons for conducting DEA audits and investigations. These include:
Generally, DEA audits occur once after three years, however, it is frequent for practitioners who prescribe buprenorphine or who have a Drug Addiction Treatment Act of 2000 waiver. Narcotic distributors, treatment programs, and other unlicensed DEA registrants face inspection once after five years.
DEA Notices of Inspection (DEA Form 82) and Warrants
The DEA does not need a warrant to carry out an inspection to check for CSA compliance. However, when the DEA is conducting an investigation in conjunction with other authorities, a search warrant is important for searching a clinic/practice. DEA investigators conduct inspections in various state offices in the U.S. and are affiliated with the DEA’s Diversion Control Program. The first step in a DEA audit is a notice of inspection or the issuance of a DEA Form 82 or an inspection warrant to the person under investigation. At this point, the presence of a lawyer is important for the interpretation or the determination of the legality of the warrant.
Informed Consent for DEA Audits
After the administration warrant is issued, the registrant should give their consent before an inspection or audit commences. An informed consent refers to a statement in writing indicating that the registrant is aware of their constitutional right to turn down an inspection and that any incriminating evidence can be used during a criminal prosecution, and that they offer their voluntary consent.
There are cases when the DEA does not require informed consent or a search warrant for a DEA inspection. A warrant is not required for inspecting records and books in accordance with a subpoena presented by the DEA, or for inspections that are conducted because there is imminent danger to public safety, or for determining DEA registration.
Administrative Inspection and Search Warrants
In case a DEA registrant fails to offer informed consent to an audit, the DEA should get an administrative inspection warrant from the Federal District Court. The DEA is not required to prove probable cause for inspection warrants. To obtain a search warrant, the DEA should describe the extent and nature of the inspection and the items they intend to seize.
DEA registrants are required to comply with administrative search warrants. When a registrant fails to comply with the warrant, they are likely to face jail time. It is advisable to contact an attorney the moment you receive a search warrant for advice on what to do, and for guidelines on how to protect your DEA registration.
There are various reasons a registrant may refuse to consent to an inspection. First, DEA audits are conducted without warning and the registrant may need to contact a lawyer before the search begins. When a registrant receives a DEA Form 82, they should call their lawyers to determine whether they should give informed consent for inspection. If the DEA issue an administrative search warrant while the investigations are underway, the presence of legal counsel during the process will ensure the DEA conduct their search within the limits of the warrant. Furthermore, legal assistance will help you identify crucial areas that can help your practice look favorable to the DEA.
Scope of DEA Investigations
The DEA does not have the authority to inspect everything in your practice. The DEA is authorized to interview you and your employees. Anything you or your staff admits to during the interview will be used against you in a criminal proceeding. Therefore, you need to have a lawyer by your side before any interview to prevent incrimination and ensure your rights are protected.