Lead Opinion
Appellant Paul E. Raber was indicted for 33 counts of violating OCGA § 16-13-42 (a) (1) by unlawfully distributing or dispensing a controlled substance, in that he, being a licensed practitioner under the laws of this state, “did unlawfully issue a prescription document signed in blank in violation of OCGA § 16-13-41 . . . .” This language is taken from the first sentence of OCGA § 16-13-41 (h), which provides that “[i]t shall be unlawful for any practitioner to issue any prescription document signed in blank.” The trial court denied a
Appellant contends that OCGA § 16-13-41 (h) is unconstitutionally vague as applied in this case. Indeed, where, as here, First Amendment rights are not implicated, a vagueness challenge to a statute must be examined in the light of the facts of the case at hand, unless the statute is shown to be impermissibly vague in all of its applications. Santos v. State,
Although the indictment here does not set forth factual allegations and the facts of this case have not been established by trial, the record and briefs provide allegations of fact which are put forth by the State in support of its indictment, are uncontested by Appellant, and are sufficient to permit a consideration of the vagueness challenge. Randolph v. State,
It is undisputed that the indictment in this case is the result of a pre-signed prescription pad that contained thirty-three separate forms found in a safe at the home of [Appellant’s] nurse practitioner. The State alleges that [Appellant] violated OCGA § 16-13-41 [(h)] when he signed these prescription forms in blank and provided them to his nurse practitioner.
Appellant argues that, because OCGA § 16-13-41 (h) does not define what a physician must do to “issue” a prescription document, he did not have fair notice that providing a pre-signed blank prescription pad to a member of his medical staff in the course of her employment would subject him to prosecution for a felony offense.
“““(A) solemn act of the legislature is presumed to be constitutional. (Cit.)’ (Cit.)”’ [Cit.] ‘The rules of statutory construction require this court to construe a statute as valid when possible. (Cit.)’ [Cit.]” Rodriguez v. State,
*253 A law may be unconstitutionally vague if it fails to provide the kind of notice that will enable ordinary people to conform their conduct to the law or if it fails to provide sufficient guidelines to govern the conduct of law enforcement authorities, thus making the law susceptible to arbitrary and discriminatory enforcement. [Cits.]
In re D. H.,
The “ ‘prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for “(i)n most English words and phrases there lurk uncertainties.” . . .’ (Cit.)” [Cit.]
Lindsey v. State,
Prior subsections of OCGA § 16-13-41 contain several requirements for the issuance of a prescription in writing. When a practitioner writes a prescription drug order, he “shall include the name and address of the person for whom it is prescribed, the kind and quantity of [the] controlled substance, the directions for taking, the signature, and the name, address, telephone number, and DEA registration number of” the practitioner. OCGA § 16-13-41 (b), (d) (2). Although the latter information identifying the practitioner may be preprinted on the prescription form, the other necessary information is unique to the individual patient and, thus, must always be filled in before the prescription can be issued. Furthermore, “[s]uch prescription shall be signed and dated by the practitioner on the date when issued . . . .” OCGA § 16-13-41 (b), (d) (2). Therefore, a “prescription” is “issued” only when both the signature mandate and the other contemporaneous requirements are fulfilled. OCGA §
However, OCGA § 16-13-41 (h) addresses issuance of a prescription “document” rather than issuance of the prescription itself. That subsection deals with instances where requirements other than the signature are not fulfilled and, thus, the prescription itself is not issued. Entirely unlike other subsections of OCGA § 16-13-41, subsection (h) covers the circumstance of a prescription “document signed in blank.” In that circumstance, the prescription form, which may identify the practitioner by some preprinted information, is not filled in with any other required information, except for the signature. Thus, the first sentence of subsection (h), on its face, excludes many of the requirements for issuance of a prescription set forth in preceding portions of the statute. Furthermore, subsection (h) neither mentions nor implies that the practitioner must give the document to the “ultimate user.”
To the contrary, the concluding sentence of OCGA § 16-13-41 (h) compels the opposite conclusion when it states that “[t]he possession of a prescription document signed in blank by a person other than the person whose signature appears thereon shall be prima-facie evidence of a conspiracy between the possessor and the signer to violate” the Georgia Controlled Substances Act. Because this provision broadly includes possession of the document by any “person other than the person whose signature appears thereon,” it is completely inconsistent with exclusion of a person who is a staff member, regardless of whether she is intended to be the ultimate user herself or is instead expected to complete the document in the future at the direction of the licensed physician who employs her. “The various provisions of a statute ‘should be viewed in harmony and in a manner which will not produce an unreasonable or absurd result. (Cits.)’ [Cit.]” Lindsey v. State, supra at 774 (1). Although this principle of statutory construction is acknowledged in the dissent authored by Presiding Justice Hunstein, that opinion does not deal with language which is contained in the very subsection that it is construing and which cannot be reconciled with its analysis. If the term “issue” in OCGA § 16-13-41 (h) could be defined so as to exclude the conveyance of a prescription document signed in blank to a staff member acting in the course of her employment, then her possession of such a document would be wholly innocent and, contrary to the final sentence of subsection (h), could not logically constitute prima-facie evidence of a conspiracy. Properly construed, therefore, the statute provides definite warning to persons of ordinary intelligence that the conduct alleged here is proscribed.
This is not a case in which the prosecutor’s decision to consider [Appellant’s] act to be criminal and to be a proper subject of prosecution is made only because of the act’s consequence. [Cit.] Rather, [Appellant’s] act was criminal when he [provided the pre-signed prescription forms to his nurse practitioner], without regard to the result of that act. . . . “[T]he fact that application of the statute’s standards sometimes requires an assessment of the surrounding circumstances to determine if the statute is violated does not render it unconstitutional. [Cit.]” [Cits.]
Banta v. State,
Accordingly, we hold that OCGA § 16-13-41 (h) is not unconstitutionally vague as applied in this case.
Dissenting Opinion
dissenting.
A physician determines that the patient he has just examined needs a prescription for a certain drug. In the presence of the patient and attending nurse, the physician signs the prescription document but, uncertain of the proper spelling of the drug, hands the prescription document to his nurse while he thumbs through his Physicians’ Desk Reference. Thanks to the majority and its unreasonable interpretation of OCGA § 16-13-41 (h), the physician has just committed a felony punishable by five years imprisonment and a $25,000 fine. It does not matter that the nurse is standing directly next to the doctor, perhaps filling in the patient’s name and address; it does not matter that the physician retrieves the signed document moments later; it does not matter that the physician intends the patient in the room to be the ultimate user of the prescription. Under the majority’s interpretation of OCGA § 16-13-41 (h), the physician “issued” the prescription document to the nurse and because the document so issued was signed in blank, the physician violated OCGA § 16-13-42 (a) (1) by unlawfully “distributing] or dispensing] a controlled substance in violation of Code Section 16-13-41.”
The majority justifies its interpretation of “issue” in OCGA § 16-13-41 (h) by referencing the usual statutory interpretation language but it omits the most pertinent rule of construction, namely, our duty “to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” State v. Mulkey,
It is uncontroverted that the term “issue” is not defined in OCGA § 16-13-41, in OCGA § 16-13-21 (definition of terms used in Chapter 13 of Title 16) or elsewhere in the Code. Reviewing the manner in which the Legislature uses the term “issue” elsewhere in OCGA § 16-13-41, even the majority acknowledges the Legislature’s clear intent that a prescription “issue” when the ultimate user or someone on her behalf has received it. The majority, however, then rejects that common sense interpretation of the term and seizes upon hair-splitting nuances in language to conclude that the Legislature intended “issue” to have a completely different interpretation in subsection (h) of OCGA § 16-13-41 than it has in prior subsections in the same statute. Suddenly, “issue” consists merely of the physical transfer of the prescription document from a physician to any other person, regardless of that person’s identity, with the issuance becoming a felony when the document that is transferred is signed but otherwise blank. Hence, the physician in the hypothetical above has committed a felony merely by handing a signed but blank prescription document to the nurse standing next to him regardless of the fact that the patient in the room is the “ultimate user” of that prescription document and is, in fact, the person who thereafter presents the completed document to a pharmacy for dispensing of the prescribed medicine. This is the “unreasonable” and “absurd consequence[ ] not contemplated by the legislature” that results from the majority’s rejection of a common sense interpretation of “issue” in subsection (h) consonant with its use elsewhere in OCGA § 16-13-41. See State v. Mulkey, supra.
A criminal statute must be read according to the natural and obvious import of its language, and its operation should not be limited or extended by application of subtle and forced interpretations. Foster v. State,
Contrary to the majority’s opinion, the term “issue” fails to give persons of ordinary intelligence fair notice that the conduct at issue in this case is criminalized by OCGA § 16-13-41 (h) and thus renders the statute unconstitutionally vague. The statute is unconstitutional for an additional reason. We have held that statutes are unconstitutionally vague where a defendant’s conduct was prosecuted as unlawful based solely upon the consequences that flowed from that conduct and law enforcement officials’ view of those consequences. Hall v. State,
Physicians in this State know that pre-signing a blank prescription constitutes unprofessional conduct that would authorize the Composite State Board of Medical Examiners to take disciplinary action against them pursuant to Board Rule 360-3-.02 (4). They are likely also aware that a small minority of physicians, in an abuse of the trust placed in them, process prescription documents in various illegal ways, including issuing signed-in-blank prescription forms in order to enable unauthorized persons to obtain controlled substances that could not otherwise be lawfully dispensed. However, what physicians in this State have not previously known, due to the failure in the language in OCGA § 16-13-41 to provide any fair warning, is that it is a felony in violation of the Georgia Controlled Substances Act for a physician to simply hand a signed but blank prescription form to a health care professional on the physician’s staff for the purpose of facilitating the delivery of the prescription
Notes
Of course, I would recognize that a physician “issues” a pre-signed, blank prescription form in violation of OCGA § 16-13-41 (h) notwithstanding the fact that the recipient is a member of the physician’s staff in those situations where the physician provides such a form for the staff member’s personal use or to enable the staff member, in turn, to provide the prescription form to an unauthorized recipient.
Dissenting Opinion
dissenting.
Although I agree with the majority’s determination that OCGA § 16-13-41 (h) is not unconstitutionally vague, I do not agree with its definition of the term “issuance” or its assessment of the types of conduct covered by the statute. To the contrary, I believe that the act for which Dr. Raber has been charged in this case, namely giving a signed prescription pad to his nurse, is not covered under OCGA § 16-13-41 (h) by the statute’s clear and unambiguous terms. As a result, I must respectfully dissent.
Appellate courts have a duty to construe a statute in a manner which upholds it as constitutional whenever possible. See, e.g., Garner v. Harrison,
I am authorized to state that Chief Justice Sears joins in this dissent.