CopyCited 32 times | Published | Supreme Court of Georgia | Aug 28, 2017 | 804 S.E.2d 388
...Turning to the merits of Hourin’s appeal, he argues that the trial court erred in denying his general demurrer and motion to dismiss. He contends that the indictment should be dismissed for two reasons: (1) the statutes under which he is charged, OCGA §
16-13-41 and OCGA §
16-13-42, are unconstitutionally vague as to whom they apply; and (2) OCGA §
16-13-41 (h) is unconstitutional because it shifts the burden of proof to the defendant. The trial court did not err in rejecting those arguments as a basis for dismissal.
(a) Hourin first argues that OCGA §
16-13-41 andOCGA §
16-13-42 are unconstitutionally vague....
...As the overt act committed in furtherance of this alleged conspiracy, the indictment alleges that Hourin possessed “13 prescriptions that were issued and signed in blank by Dr. Kelvin White, a practitioner and a person who is subject to the requirements of [OCGA §]
16-13-35[,] in violation of [OCGA §]
16-13-41(h)[.]”OCGA §
16-13-42 (a) (1) makes it “unlawful for any person... [w]ho is subject to the requirements of Code Section
16-13-35 to distribute or dispense a controlled substance in violation of Code Section
16-13-41[.]” OCGA §
16-13-41 (h) provides:
It shall be unlawful for any practitioner to issue any prescription document signed in blank....
...dence of a conspiracy between the possessor and the signer to violate the provisions of this article.
The State does not allege that Hourin is either subject to the requirements of OCGA § 16-13-353 or a “practitioner” within the meaning of OCGA §
16-13-41 (h)4 and in fact appears to concede at least that he is not the latter.
*839Hourin argues that the statutes under which he is charged are unconstitutionally vague because they do not put him on notice that they apply to a person who is not a “practitioner.” But regardless of whether Hourin could be convicted of violating OCGA §
16-13-42 (a) (1) or OCGA §
16-13-41 (h), andregardless ofwhether the statutes are vague as applied to him, Hourin’s argument fails because it rests on the faulty premise that a defendant cannot be convicted of conspiring to commit a particular offense if he could not be convicted of committing the underlying offense....
...112, 120-121 (53 SCt 35, 77 LE 206) (1932); United States v. Rabinowich, 238 U. S. 78, 86 (35 SCt 682, 59 LE 1211) (1915); United States v. Holte, 236 U. S. 140, 145 (35 SCt 271, 59 LE 504) (1915). Thus, even if Hourin could not be convicted of violating OCGA §
16-13-42 (a) (1) or OCGA §
16-13-41 (h), he may be prosecuted for conspiring with another to violate those provisions....
..., let alone whether they clearly put Hourin on notice that they do. Hourin does not contend that the statutes were vague as to the doctor with whom he is charged with conspiring. Hourin’s vagueness argument fails.
(b) Hourin also argues that OCGA §
16-13-41 (h) is unconstitutional because it relieves the State of its burden to prove the elements of a conspiracy Again, we disagree.
OCGA §
16-13-41 (h) provides that “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...
CopyCited 17 times | Published | Supreme Court of Georgia | May 31, 2011 | 289 Ga. 220, 2011 Fulton County D. Rep. 1605
...(a) The jury found Chua guilty of multiple counts of distributing controlled substances by prescribing them in a manner that was not "in the usual course of his professional practice," and was not "for a legitimate medical purpose," in violation of OCGA §
16-13-41(f); [2] specifically, he was *544 found guilty of distributing methadone and oxycodone on unspecified dates, distributing OxyContin and Percocet (both oxycodone drugs) on November 28, 2005, and distributing methadone on December 9 and December 12, 2005....
...335,
46 L.Ed.2d 333 (1975); United States v. Williams,
445 F.3d 1302 (11th Cir.2006), abrogated on other grounds by United States v. Lewis,
492 F.3d 1219 (11th Cir.2007). However, the question is not what Chua's actions "were not," but "what they were"; nothing in OCGA §
16-13-41(f) confines its application to physicians who are trafficking in drugs to multiple parties....
...And, the resolution of such evidentiary conflicts is the province of the jury, not this Court. Hampton v. State,
272 Ga. 284, 285(1),
527 S.E.2d 872 (2000). In view of the foregoing, we conclude that the evidence authorized the jury to find Chua guilty beyond a reasonable doubt of violating OCGA §
16-13-41(f). Jackson v. Virginia, supra; Greeson, supra. (b) Chua contends that, even if the evidence authorized the jury to find him guilty of violating OCGA §
16-13-41(f), it did not authorize a finding of guilt as to the crime of felony murder....
...bstances as set forth in the indictment was the proximate cause of Carter's death. See State v. Jackson,
287 Ga. 646,
697 S.E.2d 757 (2010). The indictment alleged that Chua committed felony murder by causing Carter's death through violation of OCGA §
16-13-41(f), which was committed by being a physician authorized by this State to prescribe controlled substances, did distribute controlled substances, to wit: methadone (schedule II), morphine (schedule II), oxycodone (schedule II), by prescribing said drugs to James B....
...he very least, that Chua's act of prescribing the methadone "directly and materially contributed" to Carter's death. [9] Durden, supra. The evidence authorized the jury to find Chua guilty beyond a reasonable doubt of felony murder by violating OCGA §
16-13-41(f)....
...The trial court did not err in admitting the evidence. 3. Chua requested a jury charge on "good faith," including that the State has the burden of proving beyond a reasonable doubt that he was not acting in good faith when prescribing controlled substances allegedly in violation of OCGA §
16-13-41(f), and that he had no burden of proving that he was acting in good faith. The jury was fully instructed on the burden of proof and that the defendant had none, and on the elements of the *551 crime of violating OCGA §
16-13-41(f)....
...On October 25, 2007, Chua filed a motion for a new trial, which he amended on March 4, 2010; the motion as amended was denied on April 28, 2010. Chua filed a notice of appeal on May 3, 2010; his appeal was docketed for the January 2011 term of this Court, and orally argued on March 7, 2011. [2] OCGA §
16-13-41 reads: (a) 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....
...led Substances Act as set forth in" the indictment. [10] OCGA §
16-13-42 reads: (a) It is unlawful for any person: (1) Who is subject to the requirements of Code Section
16-13-35 to distribute or dispense a controlled substance in violation of Code Section
16-13-41; (2) Who is a registrant to manufacture a controlled substance not authorized by his registration or to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person...
CopyCited 7 times | Published | Supreme Court of Georgia | Mar 23, 2009 | 285 Ga. 251, 2009 Fulton County D. Rep. 1019
...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 motion filed by Appellant to dismiss the indictment on constitutional due process grounds. He appeals pursuant to our grant of his application for interlocutory appeal. Appellant contends that OCGA §
16-13-41(h) is unconstitutionally vague as applied in this case....
...s 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....
...the conduct of law enforcement authorities, thus making the law susceptible to arbitrary and discriminatory enforcement. [Cits.] In re D. H.,
283 Ga. 556-557(2),
663 S.E.2d 139 (2008). We must consider the sufficiency of the notice provided by OCGA §
16-13-41(h) "in light of the specific conduct engaged in by [Appellant], and not abstract or marginal offenses." Douglas v....
....' (Cit.)" [Cit.] Lindsey v. State,
277 Ga. 772, 773(1),
596 S.E.2d 140 (2004). In evaluating a vagueness challenge to "`the constitutionality of a statute, we must examine it in its entire context.' [Cit.]" Lindsey v. State, supra. Thus, the prohibition in OCGA §
16-13-41(h) on issuance of any prescription document signed in blank must be interpreted in pari materia with the remainder of the statute, especially the same subsection. See Lindsey v. State, supra; Pacolet Mfg. Co. v. Weiss,
185 Ga. 287, 297(2),
194 S.E. 568 (1937) (construing the term "issued" in its statutory context). 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)....
...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 §
16-13-41(a) and (d)(1) may also imply that a written prescription is issued only when the "ultimate user" or someone on his behalf has received it. 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....
...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....
...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...
...Properly construed, therefore, the statute provides definite warning to persons of ordinary intelligence that the conduct alleged here is proscribed. Appellant also argues, citing Hall v. State, supra at 93-95(2),
485 S.E.2d 755, that the language of OCGA §
16-13-41(h) allowed for arbitrary and discriminatory enforcement based upon unintended consequences of his conduct....
...[Cit.]" [Cits.] Banta v. State,
281 Ga. 615, 617(1),
642 S.E.2d 51 (2007). See also State v. Boyer,
270 Ga. 701, 703(1),
512 S.E.2d 605 (1999). In this case, it is not necessary to assess the surrounding circumstances in order to determine whether OCGA §
16-13-41(h) was violated....
...documents signed in blank. This danger is undoubtedly the legislature's rationale for a bright-line prohibition on such acts, regardless of who the recipient is or exactly what risk the particular circumstances reveal. Accordingly, we hold that OCGA §
16-13-41(h) is not unconstitutionally vague as applied in this case....
...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....
...ddress; 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 "distribut[ing] or dispens[ing] 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,
252 Ga. 201, 204,
312 S.E.2d 601 (1984). The Legislature enacted OCGA §
16-13-41(h) to criminalize the behavior of those physicians who are nothing more than drug dealers with medical licenses....
...als on their staff for the sole purpose of facilitating the delivery of a specific prescription ordered by the physician to a patient under the physician's direct medical supervision. Yet this is precisely the construction the majority gives to OCGA §
16-13-41(h) so as to bring within the ambit of this statute practitioners like Dr....
...Raber, who has been charged with 33 felony counts of violating OCGA §
16-13-42(a)(1), all because he gave his nurse a pad of pre-signed blank prescription documents not for her own use but for his patients' legitimate medical needs. 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....
...dicine. This is the "unreasonable" and "absurd consequence[ ] not contemplated by the legislature" *889 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....
...Instead, issuance of a prescription form reflects that the physician has given the form to the ultimate user, i.e., the person who has been enabled by the issuance of the form to obtain controlled substances. This construction of issuance is consistent with the Legislature's intent in enacting OCGA §
16-13-41(h) and the evil it sought to correct by forbidding the issuance of a "signed in blank" prescription form, i.e., the use of such a form to obtain controlled substances by unauthorized persons without a legitimate medical purpose and without proper medical supervision....
...pse is best addressed by the Board and the Medical Association of Georgia. 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....
...Raber, was uncovered solely as the result of law enforcement's investigation into Eaton's death. But for her death, no charges would currently be pending against Dr. Raber. I would recognize that, because Dr. Raber would not be facing these charges except for the consequences of his conduct, OCGA §
16-13-41(h) is unconstitutionally vague for its susceptibility to selective and arbitrary enforcement....
...k 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 form to a patient, the ultimate user, as authorized by the physician. [1] Because I would not construe *890 the language in OCGA §
16-13-41(h) to encompass such conduct within the statutory prohibition and because I would find the statute unconstitutionally vague, both for failing to provide fair warning to persons of ordinary intelligence and for its susceptibility to arbitrary and selective enforcement, I respectfully dissent to the majority's opinion. MELTON, Justice, 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....
...866, 869(2),
400 S.E.2d 925 (1991). If it is clear what a statute, as a whole, prohibits, that statute is not unconstitutionally vague. Rozier v. State,
259 Ga. 399,
383 S.E.2d 113 (1989). As discussed by Presiding Justice Hunstein in her separate dissent, OCGA §
16-13-41(h) has a clear meaning supported by the intent of the Legislature....
...was given to a trusted nurse, not the ultimate user. I am authorized to state that Chief Justice Sears joins in this dissent. NOTES [1] 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 pr...
