What Is the Main Goal When Defending Against the DEA
The main goal is to preserve the practitioner’s liberty, their license, and their livelihood, in that order of priority, by establishing that the prescribing was medically appropriate and that the government’s characterization of it as criminal diversion is wrong.
That statement sounds simple. Its execution is not. The defense of a DEA opioid investigation requires a strategy that addresses the criminal charge, the administrative proceeding, the state board action, and the civil liability simultaneously, with an understanding that decisions made in one proceeding affect all the others. The main goal is singular. The path to it runs through multiple simultaneous proceedings that each require attention.
The Primary Defense Objective
The primary objective in defending against a DEA opioid investigation is the establishment of a specific, documented, credible account of why the prescribing was medically appropriate. This objective is not merely the assertion that the prescribing was appropriate. It is the construction of an evidentiary foundation, from the medical records, from the expert analysis, from the clinical guidelines, and from the patient testimony, that supports that assertion with the specificity and credibility that a federal jury or a DEA administrative law judge can accept.
The government’s case is built on statistical deviation from a peer norm and translated into a clinical conclusion by an expert witness. The defense’s case must address the statistical methodology, provide a clinical alternative to the government’s expert conclusion, and present the practitioner as a physician who treated real patients with real pain rather than a dealer who used a medical license as a distribution mechanism. Both of those are stories. The defense must make the true story more compelling than the government’s version of the same facts.
Protecting the License
The DEA registration and the medical or pharmacy license are the professional life of the practitioner. In many cases, the administrative proceeding that threatens those credentials is more immediately consequential than the criminal proceeding, because the administrative outcome determines whether the practitioner can continue working while the criminal matter is resolved. A practitioner who loses their DEA registration to an immediate suspension order and their medical license to an emergency state board suspension is a practitioner who has lost their livelihood before any criminal charge has been resolved.
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(212) 300-5196The defense of the administrative proceedings is therefore not secondary to the criminal defense. It is a parallel priority that requires immediate attention. The immediate suspension order must be challenged through the DEA’s administrative hearing process. The state board emergency suspension must be contested through the applicable state administrative procedures. These proceedings have their own evidentiary standards, their own procedural rules, and their own timelines, and they require counsel who is experienced in the specific administrative forum as well as in the criminal defense.
Managing the Civil Exposure
The False Claims Act liability and the civil monetary penalties that accompany or follow an opioid fraud investigation represent financial exposure that can be as devastating as the criminal sentence in its practical impact on the practitioner’s life. Managing that exposure, through cooperation arrangements, settlement negotiations, and the contest of the government’s liability theories, is an objective that runs alongside the criminal and administrative defense.
The resolution of the civil exposure in a manner that does not prejudice the criminal defense requires coordination between civil and criminal defense counsel that must be established from the beginning of the representation. A settlement of the False Claims Act liability that includes admissions of conduct inconsistent with the criminal defense strategy has undermined the criminal defense. A criminal defense strategy that depends on a narrative inconsistent with the civil settlement that has already been signed has created an internal contradiction that the prosecution will exploit.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
The goal of the defense is not to win every proceeding. It is to achieve the best realistic outcome across all of the proceedings, weighted by the severity of the consequences at stake in each. The criminal acquittal is worth more than any other single outcome. The preservation of the license without a criminal conviction is the second priority. The minimization of the financial consequences follows. The defense strategy that achieves all three simultaneously is the strategy worth pursuing. The defense strategy that wins one while sacrificing the others may not, on balance, represent the best available result.
The Role of Early Engagement
The main goal is most achievable when counsel is engaged at the earliest possible stage of the investigation. Pre-indictment intervention that produces a declination achieves all three objectives simultaneously. Administrative proceedings that preserve the license while the criminal matter is resolved protect the practitioner’s livelihood during the period of greatest uncertainty. Civil resolutions structured to minimize the financial damage without prejudicing the criminal defense address the financial exposure without compromising the primary objective. None of those outcomes are achievable from the same position as the practitioner who first retains counsel after the indictment is returned.
