TITLE 16 CRIMES AND OFFENSES

Section 13. Controlled Substances, 16-13-1 through 16-13-114.

ARTICLE 2 REGULATION OF CONTROLLED SUBSTANCES

16-13-41. Prescriptions.

Except when dispensed directly by a registered practitioner, other than a pharmacy or pharmacist, to an ultimate user, no controlled substance in Schedule II may be dispensed without the written prescription of a registered practitioner.
When a practitioner writes a prescription drug order to cause the dispensing of a Schedule II substance, he or she shall include the name and address of the person for whom it is prescribed, the kind and quantity of such Schedule II controlled substance, the directions for taking, the signature, and the name, address, telephone number, and DEA registration number of the prescribing practitioner. Such prescription shall be signed and dated by the practitioner on the date when issued, and the nature of such signature shall be defined in regulations promulgated by the State Board of Pharmacy. Prescription drug orders for Schedule II controlled substances may be transmitted via facsimile machine or other electronic means only in accordance with regulations promulgated by the State Board of Pharmacy in accordance with Code Section 26-4-80 or 26-4-80.1, or in accordance with DEA regulations at 21 C.F.R. 1306.
In emergency situations, as defined by rule of the State Board of Pharmacy, Schedule II drugs may be dispensed upon oral prescription of a registered practitioner, reduced promptly to writing and filed by the pharmacy. Prescriptions shall be retained in conformity with the requirements of Code Section 16-13-39. No prescription for a Schedule II substance may be refilled.
1. Except when dispensed directly by a practitioner, other than a pharmacy or pharmacist, to an ultimate user, a controlled substance included in Schedule III, IV, or V, which is a prescription drug as determined under any law of this state or the Federal Food, Drug and Cosmetic Act, 21 U.S.C. Section 301, 52 Stat. 1040 (1938), shall not be dispensed without a written or oral prescription of a registered practitioner. The prescription shall not be filled or refilled more than six months after the date on which such prescription was issued or be refilled more than five times.
2. When a practitioner writes a prescription drug order to cause the dispensing of a Schedule III, IV, or V controlled substance, he or she shall include the name and address of the person for whom it is prescribed, the kind and quantity of such controlled substance, the directions for taking, the signature, and the name, address, telephone number, and DEA registration number of the practitioner. Such prescription shall be signed and dated by the practitioner on the date when issued or may be issued orally, and the nature of the signature of the prescriber shall meet the guidelines set forth in Chapter 4 of Title 26, the regulations promulgated by the State Board of Pharmacy, or both such guidelines and regulations.
A controlled substance included in Schedule V shall not be distributed or dispensed other than for a legitimate medical purpose.
No person shall prescribe or order the dispensing of a controlled substance, except a registered practitioner who is:
1. Licensed or otherwise authorized by this state to prescribe controlled substances;
2. Acting in the usual course of his professional practice; and
3. Prescribing or ordering such controlled substances for a legitimate medical purpose.
No person shall fill or dispense a prescription for a controlled substance except a person who is licensed by this state as a pharmacist or a pharmacy intern acting under the immediate and direct personal supervision of a licensed pharmacist in a pharmacy licensed by the State Board of Pharmacy, provided that this subsection shall not prohibit a registered physician, dentist, veterinarian, or podiatrist authorized by this state to dispense controlled substances as provided in this article if such registered person complies with all record-keeping, labeling, packaging, and storage requirements regarding such controlled substances and imposed upon pharmacists and pharmacies in this chapter and in Chapter 4 of Title 26 and complies with the requirements of Code Section 26-4-130.
It shall be unlawful for any practitioner to issue any prescription document signed in blank. The issuance of such document signed in blank shall be prima-facie evidence of a conspiracy to violate this article. The 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 provisions of this article.
1. Pharmacists may dispense prescriptions from a remote location for the benefit of an institution that uses a remote automated medication system in accordance with the requirements set forth in the rules and regulations adopted by the State Board of Pharmacy pursuant to paragraph (12.1) of subsection (a) of Code Section 26-4-28.
2. As used in this subsection, the term "institution" means a skilled nursing facility or a hospice licensed as such under Chapter 7 of Title 31.

(Code 1933, § 79A-820, enacted by Ga. L. 1974, p. 221, § 1; Ga. L. 1979, p. 859, § 10; Ga. L. 1982, p. 3, § 16; Ga. L. 1983, p. 349, § 2; Ga. L. 1985, p. 149, § 16; Ga. L. 1985, p. 1219, § 5; Ga. L. 1986, p. 1031, § 1; Ga. L. 1999, p. 81, § 16; Ga. L. 2003, p. 349, § 7; Ga. L. 2007, p. 47, § 16/SB 103; Ga. L. 2011, p. 308, § 2/HB 457.)

Cross references.

- Georgia Pharmacy Practice Act, § 26-4-1 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "Federal" was capitalized preceding "Food, Drug and Cosmetic Act" in the first sentence of paragraph (d)(1).

Administrative Rules and Regulations.

- Opioid treatment program clinical pharmacies, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia State Board of Pharmacy, Ch. 480-18.

JUDICIAL DECISIONS

O.C.G.A. § 16-13-41(h) was not unconstitutionally vague as applied to a defendant, a physician, who was charged with violating O.C.G.A. § 16-13-42(a)(1) by improperly providing 33 signed prescription forms in blank to the defendant's nurse practitioner in violation of § 16-13-41(h) as that provision broadly included possession of a document by any person other than the one whose signature appeared thereon; thus, a physician's staff member could not be excluded. Raber v. State, 285 Ga. 251, 674 S.E.2d 884 (2009).

Constitutionality.

- Defendant's challenge to the constitutionality of O.C.G.A. §§ 16-13-41 and16-13-42 on the basis of vagueness failed because the defendant did not contend that the statutes were vague as to the doctor with whom the defendant was charged with conspiring. Hourin v. State, 301 Ga. 835, 804 S.E.2d 388 (2017).

Pharmacy license as defense to drug possession charge.

- Whether an individual has a license or is otherwise lawfully permitted to have in one's possession narcotic drugs under O.C.G.A. Ch. 13, T. 16 is a matter of defense and not an element of the offense. Woods v. State, 233 Ga. 347, 211 S.E.2d 300 (1974), appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2623, 45 L. Ed. 2d 667 (1975).

State must prove prescription was not for legitimate medical purpose. Strong v. State, 246 Ga. 612, 272 S.E.2d 281 (1980).

Indictment did not violate equal protection.

- When the defendant was indicted for unlawfully prescribing a controlled substance for other than a legitimate medical purpose by an officer of the Georgia Bureau of Investigation rather than officers of the State Board of Pharmacy or Drug and Narcotics Agency, there was no denial of equal protection of the law, there being no different treatment for some persons in defendant's circumstances. Strong v. State, 246 Ga. 612, 272 S.E.2d 281 (1980).

Evidence sufficient for showing dependency created.

- Evidence that the course of treatment the defendant, a doctor, prescribed for the victim would create a physiological dependence in any patient, even one who did not have a prior addictive tendency, and that the victim exhibited signs of drug abuse that would have been recognized by a treating physician was sufficient to support conviction under O.C.G.A. § 16-13-41(f). Chua v. State, 289 Ga. 220, 710 S.E.2d 540 (2011).

Failure to verify prescription.

- Trial court erred when the court granted a family medical center's motion to dismiss for failure to file an expert affidavit as the patient's claim against the center for failing to verify the prescription after the center was contacted by the pharmacy was not one of professional negligence for which an affidavit was required. Carter v. Cornwell, 338 Ga. App. 662, 791 S.E.2d 447 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Nurse may relay practitioner's order by telephone.

- When the registered practitioner has actually ordered a controlled substance with the nurse merely acting as the relaying link in the communication process through use of the telephone, former Code 1933, §§ 79A-102 and 79A-820 (see now O.C.G.A. § 16-13-41(f )) did not specifically proscribe this activity. 1979 Op. Att'y Gen. No. 79-32.

Nurses may not write or telephone in prescriptions by referring to written protocol. 1988 Op. Att'y Gen. No. 88-9.

Unlicensed personnel in health care institutions.

- Under former Code 1933, §§ 84-906(b), 84-1012 and T. 79A (see now O.C.G.A. § 43-34-26(b), and Ch. 13, T. 16), the administration of medications by unlicensed personnel in health care institutions would not be in violation of state law. 1975 Op. Att'y Gen. No. 75-44.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 19 et seq., 26, 40, 77 et seq.

C.J.S.

- 28 C.J.S., Drugs and Narcotics, §§ 65 et seq., 99 et seq., 210 et seq.

U.L.A.

- Uniform Controlled Substances Act (U.L.A.) § 308.

ALR.

- Charge of illegal sale of narcotics or intoxicating liquor predicated upon defendant's issuance of prescription therefor otherwise than in the course of his professional practice, 133 A.L.R. 1140.

Construction of provision of Uniform Narcotic Drug Act requiring a physician's prescription as a prerequisite to a pharmacist's sale of narcotics, 10 A.L.R.3d 560.

Common-law right of action for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drug to another, 97 A.L.R.3d 528; 62 A.L.R.4th 16.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.

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