dissenting. The majority court construes the Arkansas Controlled Substances Act so as to exclude from its proscriptions physicians who have unprofessionally and unlawfully prescribed a controlled substance to his or her patient. In doing so, the court reasons that the Act makes it unlawful for any person to deliver — rather than dispense or prescribe — controlled substances. Thus, even though the state prosecuting attorney showed at trial that the appellant, a physician, prescribed controlled drugs to patients who had no medical need for them (one patient had told the appellant that she planned to sell the drugs), this court’s interpretation of the Act precludes the appellant’s conviction. The court’s holding is contrary to the strong weight of authority.
In fact, courts in other jurisdictions with Controlled Substances Acts similar to Arkansas’s have held that a physician who dispensed controlled substances by prescriptions not in the regular course of professional treatment can be prosecuted for illegal delivery under the Controlled Substances Act. State v. Vinson, 298 So.2d 505 (Fla. App. 1974) (court held delivery includes the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship, and the unlawful issuance of a prescription constitutes a delivery under the Florida Comprehensive Drug Abuse Prevention and Control Act); People v. Cliche, 111 Ill. App. 3d 593, 444 N.E.2d 649 (1982) (a medical doctor who dispensed controlled substances by prescription not in regular course of professional treatment can be prosecuted for illegal delivery under the Illinois Controlled Substances Act); see also People v. Chua, 156 Ill. App. 3d 187, 509 N.E.2d 533 (1987); People v. Alford, 405 Mich. 570, 275 N.W.2d 484 (1979) (physician dispensing controlled substances not in the course of professional practice or research can be prosecuted for unlawful delivery of a controlled substance under the Michigan Controlled Substances Act); Santoscoy v. State, 596 S.W.2d 896 (Tex. Crim. App. 1980) (court held physician who illegally dispenses or prescribes controlled substances violates the Texas Controlled Substances Act that makes it unlawful to knowingly or intentionally deliver a controlled substance); see also State v. Harris, 564 S.W.2d 561 (Mo. Ct. App. 1978); State v. Vaccaro, 142 N.J. Super. 167, 361 A.2d 47 (1976); contra State v. Best, 292 N.C. 294, 233 S.E.2d 544 (1977).
Clearly, a physician who is honest and ethical, and dispenses controlled drugs in a good faith effort to treat and cure patients, has no fear of the criminal sanctions under our Controlled Substances Act. However, a person’s mere status as a licensed physician who may dispense or prescribe prohibited drugs does not give that doctor the blanket right to abuse his authority and profession by dispensing drugs without relation to his sworn professional obligations. Cf. State v. Vacarro, 142 N.J. Super. at 173, 361 A.2d at 50-51; see also United States v. Moore, 423 U.S. 122 (1975).
In Moore, the Supreme Court held that registered physicians “can be prosecuted under sect. 841 [of the Federal Controlled Substances Act] when their activities fall outside the usual course of professional practice.” The Court noted further that “the legislative history indicates that Congress was concerned with the nature of the transaction rather than with the status of the defendant.” The Federal Act parallels Arkansas’s Act, which results from uniform law drafted to achieve uniformity between the several states and those of the federal government. See Uniformed Controlled Substances Act: Commissioners Prefatory Note, 9 U.L.A. 2 (1988).1
As previously stated, the great weight of authority supports the conclusion that a physician who writes prescriptions outside the course of his professional practice is subject to prosecution under the Controlled Substances Act. In the present case, the' majority does not even suggest that the appellant had acted within the course of his professional practice when he prescribed prohibited drugs to his patients. In fact, the record solidly supports the conclusion that the appellant acted improperly when issuing the prescriptions that led to the charges filed against him under the Act.
The majority opinion surmises that it would have been more appropriate for the appellant to have been charged under the Uniform Narcotic Drug Act, which makes it unlawful for a physician to prescribe or administer 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 Narcotic Drug Act provides for penalties that are substantially less than those provided under the Arkansas Controlled Substances Act. Specifically, the Narcotic Act provides for a fine of not more than $2,000 and imprisonment of not less than two nor more than five years, while the Controlled Substances Act provides that convictions under the Act are class Y and class C felonies, which have a range of fines from $10,000 to $250,000 and terms of imprisonment from three years to forty years, or life.
Clearly, the legislature did not envision the Narcotics Act to be the sole Act under which a physician could be charged; evidence of this fact can be seen in the severity of the penalties available under the respective Acts. It is inconceivable that a physician could receive no more than a $2,000 fine and five years imprisonment for a major drug transaction(s) carried out under the guise of prescriptions. In other words, the Narcotics Act fails to deal with physicians who are also drug pushers, and in this vein, I would submit that penal statutes should not be interpreted so strictly so as to reach absurd consequences which are clearly contrary to legislative intent. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). Furthermore, in Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981), this court stated that where two statutes authorize different ranges of punishment for the same conduct, the prosecutor may decide to proceed under the more severe statute.
In sum, this case involves a question of first impression in construing the Arkansas Controlled Substances Act and unquestionably this court could affirm the appellant’s convictions if we followed the decisions rendered on this issue by courts in most other jurisdictions. The underlying rationale given by these courts that have allowed physicians to be charged and convicted for improper prescriptions under controlled substances laws that prohibit the unlawful delivery of such drugs compels me to adhere to the same rationale when interpreting Arkansas’s Act on this same subject. Therefore, I would affirm the lower court’s conviction judgment against the appellant.
Hickman and Hays, JJ., join this dissent.The Federal Act makes it unlawful for any person knowingly or intentionally to dispense a controlled substance. However, as already discussed, most state jurisdictions have construed dispensing or the prescribing of drugs to mean the delivery of controlled drugs.