Hales v. State , 299 Ark. 93 ( 1989 )

Robert H. Dudley, Justice.

The appellant, Robert Hales, a licensed physician, prescribed unneeded controlled substances to four of his patients at their request. He was charged with and convicted of violating the Arkansas Controlled Substances Act. We reverse and dismiss the judgment of conviction because this particular statute is not applicable to a licensed physician.

The Arkansas Controlled Substances Act, specifically Ark. Code Ann. § 5-64-401 (a) (1987), makes it unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. The State contends that the appellant “delivered” controlled substances as defined in the Act by writing prescriptions for other than a true medical purpose. “Delivery” is defined under the Act as “the actual, constructive, or attempted transfer from one person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, . . . .” See Ark. Code Ann. § 5-64-101(f) (1987). The prescribing of a controlled substance by a licensed physician is not the “delivery” of a controlled substance; in fact, prescribing by a licensed physician is protected conduct under the Act. See Ark. Code Ann. § 5-64-308(a), (c), and (d) (1987). If the General Assembly had intended for “prescribing” to come within the definition of “delivery” it would have said so. It certainly knows how to do so. For example, “prescribing” is specifically included in the definition of “dispense” in the Act. Ark. Code Ann. § 5-64-101 (g).

The State contends that the prescribing of a controlled substance by a licensed physician does come within the term “delivery” because that term is described, in part, as the “constructive transfer” of a controlled substance. The argument ignores the cardinal rule of construction of criminal statutes and further ignores the prohibition against vagueness in criminal law.

First, the cardinal rule of construction: “It is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.” State v. Scarmardo, 263 Ark. 396, 565 S.W.2d 414 (1978) (citing Austin v. State, 259 Ark. 802, 536 S.W.2d 699 (1976)). The Supreme Court of the United States has written, “Statutes creating crimes are to be strictly construed in favor of the accused. They may not be held to extend to cases not covered by the words used. . . .” United States v. Resnick, 299 U.S. 207 (1936). The statute in question provides that the prohibited act is to “transfer from one person to another. . .in other words, to carry or take from one person to another. Here, the licensed physician wrote a prescription; he did not carry or take, either actually or constructively, a controlled substance from one person to another. Because of the strict construction requirement, we decline to interpret the words “constructive transfer” to include writing a prescription.

Secondly, such an interpretation would violate the rule against vagueness. That rule provides that a citizen is entitled to a fair warning in definite language of the prohibited act. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). No licensed physician could be expected to understand from this Act that the writing of a prescription could constitute the delivery of a controlled substance.

We are aware that in Moore v. United States, 423 U.S. 122 (1975), the Supreme Court held that the Federal Controlled Substances Act is applicable to physicians prescribing controlled substances outside the course of professional practice. However, the federal statute is significantly different from ours. The Federal Act contains provisions which require physicians to register and then provides specific prohibitions for physicians. 21 U.S.C. §§ 822, 823, 842, and 843 (1981). These specific provisions dealing with physicians, and other registered persons, show an intent to include these persons within the Federal Act. However, our General Assembly declined to adopt these specific provisions of the Uniform Act, see Ark. Code Ann. § 5-64-301 (1987).

In addition, the Federal Act specifically prohibits any person from manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense a controlled substance. 21 U.S.C. § 841(a)(1) (1981). The Federal Act defines “dispense” to include prescribing. Since the Federal Act prohibits “dispensing,” which by definition includes prescribing, it is clear that it can be applied to physicians. Our legislature, on the other hand, chose to prohibit the “delivery” rather than the “dispensing” of controlled substances. The term “dispense” is only defined in our Act with relation to the protected conduct of physicians writing prescriptions under Ark. Code Ann. § 5-64-308. Thus, the prescribing of controlled substances cannot be a violation of our Controlled Substances Act.

Some other state appellate courts have held that a physician delivered a controlled substance within the meaning of their particular statute by prescribing it. See People v. Cliche, 111 Ill. App. 3d 593, 444 N.E.2d 649 (1982); Santoscoy v. State, 596 S.W.2d 896 (Tex. Crim. App. 1980); People v. Alford, 405 Mich. 570, 275 N.W.2d 484 (1979); and State v. Vinson, 298 So. 2d 505 (Fla. Dist. Ct. App. 1974). On the other hand, some courts have reached the same result we do. See, e.g., Evers v. State, 434 So. 2d 813 (Ala. 1983); People v. Lipton, 445 N.Y.S.2d 430 (1981); State v. Best, 292 N.C. 294, 233 S.E.2d 544 (1977); Baker v. Superior Court of Los Angeles County, 100 Cal. Rptr. 771 (1972).

The appellant’s conduct would have been more appropriately addressed under our Uniform Narcotic Drug Act, Ark. Code Ann. §§ 20-64-201 to -226 (1987), which was enacted with this specific type of conduct in mind. This Act specifically provides that it is unlawful for a physician to prescribe, administer, or dispense any narcotic drug other than in good faith and in the course of his professional practice. See Ark. Code Ann. § 20-64-202 and § 20-64-207 (1987). The Act provides for a fine of not more than $2,000 and imprisonment of two to five years for any violation of the Act. See Ark. Code Ann. § 20-64-220 (1987).

Reversed and dismissed.

Hickman, Hays, and Glaze, JJ., dissent.