Raber v. State

CARLEY, Justice.

Appellant Paul E. 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 *252motion 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. Indeed, where, as here, First Amendment rights are not implicated, a vagueness challenge to a statute must be examined in the light of the facts of the case at hand, unless the statute is shown to be impermissibly vague in all of its applications. Santos v. State, 284 Ga. 514-515 (1) (668 SE2d 676) (2008); Catoosa County v. R.N. Talley Properties, 282 Ga. 373, 374 (651 SE2d 7) (2007). “[0]ne whose own conduct may be constitutionally proscribed will not be heard to challenge a law because it may conceivably be applied unconstitutionally to others. [Cits.]” Hubbard v. State, 256 Ga. 637, 638 (352 SE2d 383) (1987). “ ‘A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.’ [Cits.]” Catoosa County v. R.N. Talley Properties, supra at 375.

Although the indictment here does not set forth factual allegations and the facts of this case have not been established by trial, the record and briefs provide allegations of fact which are put forth by the State in support of its indictment, are uncontested by Appellant, and are sufficient to permit a consideration of the vagueness challenge. Randolph v. State, 269 Ga. 147, 149 (2) (496 SE2d 258) (1998); Hall v. State, 268 Ga. 89, fn. 2 (485 SE2d 755) (1997). The trial court accurately summarized the relevant factual allegations as follows:

It is 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.

“““(A) solemn act of the legislature is presumed to be constitutional. (Cit.)’ (Cit.)”’ [Cit.] ‘The rules of statutory construction require this court to construe a statute as valid when possible. (Cit.)’ [Cit.]” Rodriguez v. State, 284 Ga. 803, 804 (1) (671 SE2d 497) (2009).

*253A law may be unconstitutionally vague if it fails to provide the kind of notice that will enable ordinary people to conform their conduct to the law or if it fails to provide sufficient guidelines to govern 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 SE2d 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. State, 263 Ga. 748, 749 (2) (438 SE2d 361) (1994). See also Connolly v. State, 265 Ga. 563, 564 (3) (458 SE2d 336) (1995).

The “ ‘prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for “(i)n most English words and phrases there lurk uncertainties.” . . .’ (Cit.)” [Cit.]

Lindsey v. State, 277 Ga. 772, 773 (1) (596 SE2d 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 SE 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). Although the latter information identifying the practitioner may be preprinted on the prescription form, the other 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 § *25416-13-41 (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. Thus, the first sentence of subsection (h), on its face, excludes many of the requirements for 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. Because this provision broadly includes possession of the document by any “person other than the person whose signature appears thereon,” it is completely inconsistent with exclusion of a person who is a staff member, regardless of whether she is intended to be the ultimate user herself or is instead expected to complete the document in the future at the direction of the licensed physician who employs her. “The various provisions of a statute ‘should be viewed in harmony and in a manner which will not produce an unreasonable or absurd result. (Cits.)’ [Cit.]” Lindsey v. State, supra at 774 (1). 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 final sentence of subsection (h), could not logically constitute prima-facie evidence of a conspiracy. Properly construed, therefore, the statute provides definite warning to persons of ordinary intelligence that the conduct alleged here is proscribed.

*255Appellant also argues, citing Hall v. State, supra at 93-95 (2), that the language of OCGA § 16-13-41 (h) allowed for arbitrary and discriminatory enforcement based upon unintended consequences of his conduct. At the hearing on the motion to dismiss, Appellant introduced the search warrant for the nurse practitioner’s home. The supporting affidavit shows that the nurse practitioner keeps prescription pads pre-signed by Appellant in her residence, that her daughter admitted that she had stolen some of the prescription forms, and that another woman died from an apparent overdose of a drug which had been obtained by a prescription listing Appellant as the prescribing physician. Although the crimes charged here were discovered as a result of the investigation into that death, none of the charges against Appellant is based on the prescription that was in the possession of the deceased woman. Furthermore, the prosecutor was not required to make a difficult judgment in hindsight regarding the nature and extent of the risk in Appellant’s conduct. Compare Hall v. State, supra. The focus of Hall and its progeny is not on the discovery of the crime, but rather on the decision to prosecute.

This is not a case in which the prosecutor’s decision to consider [Appellant’s] act to be criminal and to be a proper subject of prosecution is made only because of the act’s consequence. [Cit.] Rather, [Appellant’s] act was criminal when he [provided the pre-signed prescription forms to his nurse practitioner], without regard to the result of that act. . . . “[T]he fact that application of the statute’s standards sometimes requires an assessment of the surrounding circumstances to determine if the statute is violated does not render it unconstitutional. [Cit.]” [Cits.]

Banta v. State, 281 Ga. 615, 617 (1) (642 SE2d 51) (2007). See also State v. Boyer, 270 Ga. 701, 703 (1) (512 SE2d 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. The tragic death set forth in the affidavit is relevant only because it eventually led to the discovery of the separate crimes charged here. Thus, that death does not indicate that enforcement of the statute was arbitrary and discriminatory. Nevertheless, it does illustrate the grave danger which is inherent in permitting a practitioner to give anyone prescription 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.

*256 Judgment affirmed.

All the Justices concur, except Sears, C. J., Hunstein, P. J., and Melton, J., who dissent.