People v. Rice , 91 Mich. App. 419 ( 1979 )

91 Mich. App. 419 (1979) 283 N.W.2d 762

PEOPLE
v.
RICE

Docket No. 78-2879.

Michigan Court of Appeals.

Decided July 23, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

Before: V.J. BRENNAN, P.J., and BRONSON and D.F. WALSH, JJ.

V.J. BRENNAN, P.J.

On October 12, 1977, defendant Theodore Rice, D.O., was charged with two counts of unlawfully dispensing and/or delivering a controlled substance in violation of MCL 335.341(1)(c); MSA 18.1070(41)(1)(c). Defendant moved to quash the information claiming that a physician dispensing controlled substances by prescription cannot be prosecuted under the above statute. The trial court noted this Court's split of authority on this issue as set forth in People v Kerwin, 56 Mich. App. 483; 224 NW2d 113 (1974), and People v Alford, 73 Mich. App. 604; 251 NW2d 314 (1977). In reliance upon Kerwin, the trial court granted defendant's motion to dismiss. The people appeal as of right.

The Supreme Court in People v Alford, 405 Mich. 570, 589; 275 NW2d 484 (1979), resolved the conflict in the Court of Appeals as to whether a physician may be convicted of violation of the controlled substances act. The Court stated:

"We hold that physicians can dispense controlled substances only ``to the extent authorized by their registration and in conformity with the other provisions of this chapter.' MCL 335.332(2); MSA 18.1070(32)(2).

"A physician dispensing controlled substances not in the course of professional practice or research can be prosecuted for unlawful delivery of a controlled substance. Whether a physician or any other person listed in MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) is acting in good faith in the course of professional practice or research is a question of fact."

Under the authority of Alford, the lower court's order quashing the information is vacated.

Reversed.