People v Alford

Blair Moody, Jr., J.

(concurring in part, dissenting in part). I concur with the analysis and result reached in Part V of the opinion for affirmance of Justice Williams, i.e., the entrapment issue. I dissent in regard to Parts III and IV of that opinion.

The appellant, Dr. Alford, was charged in an information with two counts of unlawful delivery of a controlled substance. MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). The first count defines the unlawful delivery as the writing of a prescription for 120 capsules containing amphetamines. The second count defines unlawful delivery as the actual dispensing by the doctor of 103 capsules containing barbiturates.

Inherent in the very wording of the information are the presumptions that prescribing and dispensing can be equated with "delivery” under the Michigan Controlled Substances Act (1971 PA 196, MCL 335.341; MSA 18.1070[41]), and that a registered physician can be prosecuted for unlawful delivery under the act. We think not.

Introduction

In order to put the facts of the instant case in perspective, it is essential to set out the various relevant sections of the Controlled Substances Act of 1971. The basic penalty provisions of the act are *598found in §§ 41, MCL 335.341; MSA 18.1070(41) and 42, MCL 335,342; MSA 18.1070(42).

Section 41 provides in pertinent part:1

"(1) Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
"(b) Any other controlled substance classified in schedules 1, 2, or 3, except marihuana, is guilty of a felony and upon conviction may be imprisoned for not more than 7 years or fined not more than $5,000, or both.”

On the other hand, § 42 provides in pertinent part:

"(1) It is unlawful for any person:
"(a) Who is subject to chapter 3, [2] to distribute, prescribe or dispense a controlled substance in violation of section 38.[3]
*599"(2) Any person who violates this section may be punished by a civil fine of not more than $25,000.00 in a proceeding in the circuit court. However, if the violation is prosecuted by a criminal indictment which alleges that the violation was committed knowingly or intentionally, and the trier of the fact specifically finds that the violation was committed knowingly or intentionally, such person is guilty of a misdemeanor and upon conviction may be imprisoned for not more than 2 years or fined not more than $25,000.00, or both.”

Further, the act provides specific definitions of terms which must be viewed in conjunction with the penalty provisions:

1. " 'Deliver’ or 'delivery’ means the actual, constructive or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship.” MCL 335.304(1); MSA 18.1070(4)(1).

2. " 'Dispense’ means to deliver or issue a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering or compounding necessary to prepare the substance for that delivery or issuance.” MCL 335.304(2); MSA 18.1070(4)(2).

3. " 'Person’ means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.” MCL 335.307(1); MSA 18.1070(7X1).

4. " 'Practitioner’ means:

"(a) A physician, dentist, veterinarian or pharmacist as defined in subdivisions (o), (p), (q) and (w) of section 1 of Act No. 151 of the Public Acts of 1962, as amended, being section 338.1101 of the Compiled Laws of 1948, scientific investigator as defined by rule of the administrator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.” MCL 335.307(3); MSA 18.1070(7)(3).

*600These provisions taken together provide the backdrop for our discussion.

Discussion

Our outline of the pertinent sections of the Michigan Controlled Substances Act and even a cursory reading of the remaining provisions of the act makes one thing perfectly clear: there is little clarity in this circuitously woven piece of legislation. In this morass, however, we do find certain things that do stand out.

In the instant case defendant physician was charged with unlawful "delivery” of a a controlled substance by "prescribing” certain amphetamines and by "dispensing” certain barbiturates. Unlike the Federal statute, the Michigan definitional section encompassing delivery does not include the word "dispensing”.4 While the Michigan legislation was clearly modeled after the Federal legislation, it is very significant that the Michigan Legislature chose not to include the word dispensing or its corollary, prescribing, in the definition of delivery. It indicates an intent upon the part of the Legislature not to equate the term delivery with the terms dispensing or prescribing.

This position is further bolstered by the fact that the Legislature set forth one statutory provision regulating the delivery of drugs and another statutory provision regulating the dispensing and prescribing of drugs. Section 41 governs prohibitions for unlawful delivery under the act, while § 42 contains restrictions on dispensing and prescribing.

Since the Legislature delineated separate sections and differing rules for delivery and dispens*601ing, it is evident that the Legislature did not equate the two. Had the Legislature intended to subject doctors to liability under both §§ 41 and 42, they could have said so plainly. Their failure to so indicate leads us to conclude that the Legislature did not intend a dual liability for doctors under the statute.

Our interpretation of the Legislature’s intent may be underlined by recent legislative amendments to the Michigan Controlled Substances Act. In 1978 PA 147 the Legislature amended Section 41 to read as follows:

"(1) Except as authorized by this act, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner registered by the administrator under this act shall not dispense, prescribe, or administer a controlled substance in a manner which is not for legitimate medical or therapeutic purposes and which is not in the course of the practitioner’s professional practice.” MCL 335.341; MSA 18.1070(41).

Since § 42 remains virtually intact under the new amendments, it is obvious that the Legislature now intends that practitioners, including doctors, can be liable under both sections of the act.5 It is noted, it could be said that the "new” amendments are not so much new as they present a clarification of what the Legislature intended all along.

We think there is a better view. It is our position that the Legislature in its original enactment did not intend to cover doctors under § 41; but *602with its recent enactment the Legislature has changed its view. Support for our position rests in the notion that if the Legislature had intended mere clarification and, therefore, retroactive application, the Legislature would have said so. It did not; thus, the amendment must be viewed as a total change and a complete abrogation of the old view.

Further, we are cognizant of the fact that our conclusion seems to run contrary to that of the United States Supreme Court in United States v Moore, 423 US 122; 96 S Ct 335; 46 L Ed 2d 333 (1975). However, we have already pointed out that there are significant differences between the Michigan Controlled Substances Act and the Federal Controlled Substances Act, which was interpreted in Moore.

In addition, we are also aware that at least three other jurisdictions have declined to follow Moore and have found that physicians and other registrants are not subject for violations similar to those presented in the instant case.6 Of particular relevance is the poignant statement of the Texas Court of Criminal Appeals in Haney v State, 544 SW2d 384 (Tex Crim App, 1976):

"Obviously 'dispense’ is a special and limited means of delivery provided by statute and would control over the broad general definition of 'delivery,’ which relates to the transfer, actual or constructive, of a controlled substance. 'Dispense’ relates to those instances where dispensing is pursuant to the lawful order of a practitioner. * * * [I]t can readily be seen that 'dispense’ has *603a separate and distinct meaning from, 'delivery’ for purposes of the Act.” Haney, supra, 388, fn 1.
"We are not unaware of the decision of United States v Moore, * * * that registered physicians may be prosecuted for violation of the Federal Controlled Substances Act * * * when their activities fall outside the usual course of professional practice. However, because of the difference in language of the Federal and State statute, the decision is distinguishable from the instant case.” Haney, supra, 388.

Moore is also distinguishable on another important level. In our analysis of the Michigan Controlled Substances Act, we find no standard by which to measure the culpability of a physician.

Under the Michigan act, physicians and other registrants clearly possess an exemption from prosecution. This exemption is found in chapter 3, MCL 335.332(2); MSA 18.1070(32)(2), which reads:

"Persons registered by the administrator under this act to manufacture, distribute, prescribe, dispense or conduct research with controlled substances may possess, manufacture, distribute, prescribe, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter. ” (Emphasis added.)

It has been argued that this § 32 exemption is specifically limited by language in chapter 1, § 7, which defines a practitioner:

" 'Practitioner’ means:
"(a) A physician, dentist, veterinarian or pharmacist as defined in subdivisions (o), (p), (q) and (w) of section 1 of Act No. 151 of the Public Acts of 1962, as amended, being section 338.1101 of the Compiled Laws of 1948, scientific investigator as defined by rule of the administrator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with *604respect to or to administer a controlled substance in the course of professional practice or research in this state.” (Emphasis added.) MCL 335.307(3); MSA 18.1070(7)(3).

According to that argument, physicians must act "in the course of professional practice” to retain their limited exemption.

The limiting argument is patently faulty for three reasons. First, the exemption language found in chapter 3, § 32 applies as long as the registrants’ actions are "in conformity with the other provisions of this chapter”. Thus, any limitation on the exemption must be found in chapter 3, not chapter 1 where the definition of practitioner is found.

But even if this were not the case, there is a second reason found in the very wording of the definition of practitioner which casts doubt on whether that language was intended to limit the exemption in § 32. The phrase "in the course of professional practice” occurs at the very end of the statutory definition of practitioner. It is arguable that that phrase was intended to modify all the particular persons defined as practitioners within the section.

There is a better position, however. Since the phrase appears fully 65 words after the word "physician”, it was not intended to modify physician but only the clause which immediately preceded it, that being "or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research * * * or to administer a controlled substance”.

Although both interpretations are plausible we are compelled to accept the latter one, Le., the phrase did not intend physician as its antecedent. This is so because of a basic hornbook rule in *605criminal law that a criminal statute should be strictly construed in favor of the accused.

There is a third reason even more compelling than the first two for rejecting the argument that the phrase "in the course of professional practice” forms a limitation on the physician registrant’s exemption. The phrase is vague in and of itself, neither connoting an objective standard of culpability nor a subjective standard of culpability.

This Court in People v Downes, 394 Mich 17; 228 NW2d 212 (1975), considered a conviction for violation of the Uniform Narcotic Drug Act, MCL 335.51 et seq.; MSA 18.1071 et seq., the predecessor of the Michigan Controlled Substances Act. The facts of Downes were that a doctor was charged with and convicted of prescribing certain narcotic drugs to known addicts. The conviction rested on § 7 of the act which read in pertinent part:

"(1) A physician or dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs * * (Emphasis added.) MCL 335.57; MSA 18.1077.

Defendant Downes argued that "good faith” as limited by the words "in the course of his professional practice” must present an objective standard of culpability.

This court rejected defendant’s argument. Justice Fitzgerald, writing for a unanimous Court, said:

"The interjection of the modifying terms 'in the course of his professional practice’ into the statutory formulation does not change the obvious and clear import of 'good faith’ in the absence of express manifestation of legislative intention indicating such change. *606Moreover, to construe the statute as defendant would have us construe it would be to acknowledge that the statute may measure criminality by lack of conformity to professional standards which are not set forth in coghizable form in the statute itself. The source of such standards is unclear and, indeed, the standard of 'proper’ professional conduct is the subject of considerable dispute within the profession * * *. Such a construction would necessarily require a finding of unconstitutionality.” Downes, supra, 26-27.

Therefore, the phrase "in the course of professional practice” in the Michigan Controlled Substances Act creates no standard by which to measure a physician’s culpability. It suggests neither an objective standard nor a subjective standard. This nebulous phraseology is therefore fatally defective.

Conclusion

While we do not condone what we view as the reprehensible conduct of defendant doctor in the present case, we hold that the terms prescribing and dispensing cannot be equated with the term delivery under the Michigan Controlled Substances Act and that a registered physician cannot be prosecuted for unlawful delivery under the act of 1971. We, therefore, reverse the Court of Appeals and reinstate the judgment of the trial court quashing the information.

We note at the very outset that § 41 does not include the word "dispense” among the unlawful activities proscribed. This may be contrasted with the similar provision under the Federal Controlled Substances Act, 21 USC 841(a)(1), which makes it

"unlawful for any person knowingly or intentionally—
"* * * to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance”. (Emphasis added.)

Since the Michigan act is modeled directly on the Federal act, it is of critical significance that the Michigan Legislature chose to delete the word "dispense” from those act? forbidden by § 41.

Chapter 3, MCL 335.331 et seq.; MSA 18.1070(31) et seq., sets out the general provisions regarding registration and who must be registered under the act and control of manufacture, distribution and dispensation.

Section 38, MCL 335.338; MSA 18.1070(38), sets out the general rules for prescription, distribution and dispensation by a practitioner.

See footnote 1, supra.

This last statement must be read with some caution. While it is clear that the newly amended § 41 encompasses both "delivery” and "dispensing” under its definitional mantle, it is less than clear whether the subdivisions which outline what is prohibited under § 41 apply to both unlawful delivery and unlawful dispensing. However, since this question is not before the Court, we take no position on it.

See State v Best, 292 NC 294; 233 SE2d 544 (1977); Haney v State, 544 SW2d 384 (Tex Crim App, 1976); McLean v State, 527 SW2d 76 (Term, 1975). While the McLean decision involved a pharmacist and preceded Moore by several months, its analysis was similar to that of the Best and Haney courts and to the analysis we employ in the instant case.