Should I Surrender My DEA License Upon an Agent's Request??

• DEA Form 104 is identified in the sources as a surrender-for-cause document.
• Signing Form 104 can terminate federal controlled-substance authority immediately.
• DEA registration authorizes registered practitioners to prescribe, administer, or dispense controlled substances.
• A surrender eliminates the registrant’s opportunity to contest allegations through that proceeding.
• Surrender does not guarantee that prosecutors will abandon criminal or civil enforcement.

What legal path follows refusal of DEA surrender?

If you choose not to surrender your DEA registration, even when an investigator or prosecutor urges you to do so, the DEA may pursue administrative action, including an Order to Show Cause or, in cases of imminent danger, an immediate suspension order. The first step in this process is typically the issuance of an Order to Show Cause.

An Order to Show Cause is a formal document that details the DEA’s proposed suspension or revocation of your DEA registration. Essentially, it sets out the “grounds” for the government’s proposed enforcement action. However, just because the DEA issues an Order to Show Cause does not mean your DEA registration is automatically at risk. Rather, the Order itself triggers the DEA’s obligations and deadlines under the Controlled Substances Act and other pertinent statutes, such as the Administrative Procedure Act.

And importantly, as a practitioner, you also have a deadline to satisfy. After the DEA serves an Order to Show Cause, you typically have 30 days to request a show-cause hearing. If you fail to request this hearing within the specified timeframe, you effectively waive your right to a hearing, which leaves the DEA free to execute its proposed suspension or revocation at its discretion.

Ultimately, if you request it, you will be entitled to a show-cause hearing to defend your right to maintain your DEA registration. This hearing takes place before a DEA administrative law judge, not in federal court, but in front of an independent adjudicator within the DEA’s Office of Administrative Law Judges (OALJ). This provides you an opportunity to present arguments and evidence, contest allegations, and challenge the DEA’s proposed enforcement action. This process provides an opportunity for a hearing before your federal DEA registration is finally revoked or suspended, offering you far more protection than voluntarily surrendering your DEA registration when a DEA investigator or U.S. Attorney presents you with a demand to do so.

How far can a DEA surrender reach beyond federal prescribing?

In addition to a DEA registration, state licensing boards often require a separate controlled-substance license to prescribe, dispense, or administer controlled substances at the state level. As a result, there are some states where it is possible for practitioners to hold a valid state registration, yet lack federal registration. In Illinois, for example, there is nothing keeping you from holding a state license that permits controlled-substance prescribing, while not having a valid DEA registration. But regardless of whether you have a state-level registration, you still need both registrations, unless an Illinois exemption applies, to prescribe, administer, or dispense controlled substances in Illinois.

Beyond that, in some states, surrendering a DEA registration can have consequences for your state licensure as well. For example, in Illinois, the IDFPR (Illinois Department of Financial and Professional Regulation) has a policy mandating that certain settlement offers include a state license suspension, provided that you have surrendered your DEA registration as part of the federal process. Even if the IDFPR is not involved, other state boards may still independently choose to investigate the same underlying facts that the DEA uncovered. When state boards engage in these investigations, a surrender offer for DEA registration could leave you at risk for disciplinary action at the state level.

In light of these state licensing board consequences, you need to be sure that you are thinking about the fullest potential consequences of surrendering your DEA registration, including the consequences for your state licensure and registration. With that in mind, when facing an investigation or enforcement action by the DEA, it is critical to get a comprehensive understanding of the risks before you enter into any discussions with a DEA investigator or U.S. Attorney about surrendering your DEA registration. This includes not only the risks at the federal level, but the potential state licensing consequences that could result from a DEA surrender.

Todd Spodek cross-examined Alec Baldwin at the 2013 stalking trial in Manhattan.

Before signing, how should you handle the investigator and proposed terms?

What options do you have when a DEA investigator comes to your practice and asks you to surrender your DEA registration? When will the DEA’s process be considered concluded? When is it necessary to speak with a DEA agent? What actions are necessary to preserve your DEA registration in the face of an inspection or other enforcement effort? All of these are important questions to resolve with your legal counsel before you make any decisions about surrendering your DEA registration. As outlined in the DEA’s Inspector’s Manual, the general rule is that federal law does not require the registrant to speak to the DEA’s investigators in the event of a voluntary examination. But, you should avoid engaging the investigators yourself, as you never know when a discussion with a DEA agent may unintentionally lead to a federal offense such as lying to a federal agent.

Here are a few other key points for understanding a DEA investigation that you need to be able to discuss with your legal counsel:

• With respect to a DEA examination, the investigator is entitled to examine “all records” that are subject to a DEA inspection, including controlled-substance inventories and records of the purchase, dispensing, administration, and destruction of all controlled substances. These records may include DEA Form 222s and all other necessary documentation that shows what amounts of the drug the registrant has on hand, what has been dispensed or used, and what has been destroyed.
• The DEA inspector may also copy these records, or any records that prove pertinent to the DEA’s investigation.
• The DEA’s Inspector’s Manual also states that an administrative search requires consent from the registrant. Otherwise, “the Inspector should secure an administrative inspection warrant, unless an exception applies.”

Which alternatives can preserve options better than surrender?

As a practitioner facing a federal DEA investigation or enforcement action, there are several concerns you should keep in mind. Among these concerns is the loss of negotiating leverage. With respect to negotiated settlements involving federal drug-related charges and allegations, DEA registration is often a primary issue. If you surrender your registration, then you will no longer be able to offer registration restrictions as a bargaining chip to avoid additional criminal charges or federal enforcement action.

Some other concerns that should give you pause before you voluntarily surrender your registration include:

• No Guarantee of Reinstatement: There are no guarantees that you will regain DEA registration authority after surrendering your registration. Specifically, DEA sources do not provide guidance establishing a deadline after which a surrendered DEA registration must be reinstated, nor do DEA sources establish any right to automatic reinstatement after criminal charges are resolved in your favor or you’ve reached a favorable administrative resolution with the DEA.
• No Guarantee to Avoid Criminal or Civil Prosecution: Surrendering your DEA registration does not end the possibility of facing criminal charges or civil prosecution, and it is not even necessarily an appropriate condition of such cases.
• No Guarantee to Avoid License Suspension: As discussed above, in some states, surrendering your DEA registration can lead to your state license board suspending your state licensure.
• Other Negotiated Outcomes: In addition to surrender, in addition to showing cause at a hearing, there are other negotiated settlement outcomes that could be available. In negotiated settlements, registration restrictions are often limited to specific schedules of controlled substances rather than being total in nature. Additionally, evidence showing that you have taken treatment or education to address the underlying issues leading to the investigation, as well as improvements to your compliance efforts, may be used in settlement negotiations or in arguments that suspension or revocation is not in the public interest.

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If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.