People v. Alford

• Decision Date: 08 February 1977
• Docket Number: Docket No. 20741
• Citation: 73 Mich.App. 604,251 N.W.2d 314
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Elvis Smith ALFORD, Defendant-Appellee. 73 Mich.App. 604, 251 N.W.2d 314
• Court: Court of Appeal of Michigan — District of US

Page 314

251 N.W.2d 314

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Elvis Smith ALFORD, Defendant-Appellee.

Docket No. 20741.

73 Mich.App. 604, 251 N.W.2d 314

Court of Appeals of Michigan.

Feb. 8, 1977.

Released for Publication March 18, 1977.

[73 MICHAPP 605] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Larry L. Roberts, Asst. Pros. Atty., for plaintiff-appellant.

Cyril Abramson, Troy, for defendant-appellee.

Before BASHARA, P. J., and KAUFMAN and WALSH, JJ.

WALSH, Judge.

The people of the State of Michigan appeal from an order of the Wayne County Circuit Court quashing an information filed against defendant Elvis S. Alford.

The information charges the defendant with violations of § 41(b) of the Controlled Substances Act of 1971. M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). The charge is contained in two counts. The first count alleges that Dr. Alford "did [73 MICHAPP 606] unlawfully deliver a controlled substance, to wit: 120 capsules containing amphetamine * * * " The second count alleges that Dr. Alford "did unlawfully deliver a controlled substance, to wit: 103 capsules containing barbituates (sic )".

The facts are not in dispute. On March 12, 1973, Justin Kukalis, a Michigan state police officer working in the Diversion Investigation Unit, Intelligence Division, visited Dr. Alford's office in Belleville, Michigan, as a patient. He complained of being overweight. The doctor weighed the officer, took his blood pressure by placing the blood pressure cuff over the officer's jacket and then gave him some medication. The medication consisted of 92 small beige pills and 74 flat pink double-scored pills and a prescription for 30 amphetamine capsules. The doctor explained how to use the medication and told Kukalis to return in two weeks.

Thereafter, Kukalis made eight more visits to Dr. Alford's office and was given medication on each occasion and prescriptions for amphetamines on all but one occasion. The final visit took place on June 1, 1973. On this visit Dr. Alford gave Kukalis barbiturates in the form of red and blue pills and four prescriptions for amphetamines, one for himself, one for his wife, and one each for two other parties whose names Kukalis supplied to Dr. Alford. Neither Kukalis' wife nor either of the other two parties were ever in Dr. Alford's office. It was for the alleged deliveries made on this date that Dr. Alford is charged in this case.

The trial judge made an extensive analysis of the pertinent provisions of the statute. As to Count 1, he concluded that "delivery", as that term is defined in the statute, does not include the prescribing of drugs by a practitioner. As to Count 2, he concluded that the statute either "frees licensed physicians, without qualification, to hand out barbiturate drugs, or it permits them to hand out such drugs to people who come to their offices [73 MICHAPP 607] for professional consultation regardless of whether the physician's conduct falls short of the standards of skill, care and ethics customarily employed by their co-professionals".

The trial judge further determined that Officer Kukalis' conduct constituted entrapment as a matter of law. For these reasons, the court quashed the information and dismissed Dr. Alford.

Prior to 1970 the narcotics laws at the Federal level were in an almost chaotic state. In response Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970. Title II of this act, 84 Stat. 1242 et seq. (1970), 21 U.S.C. § 801 et seq., is significant, since it provided the model for the Uniform Controlled Substances Act passed in a number of states. ¹ The uniform act was adopted in Michigan as the Controlled Substances Act of 1971 1971 P.A. 196, M.C.L.A. § 335.301 et seq.; M.S.A. § 18.1070(1) et seq. 52 Mich. S B J 617, 618. ²

We initially consider whether "delivery" includes the prescribing of drugs by a practitioner. The concept of "delivery", as defined in the act is a very general one. "Delivery" is any transfer of a controlled substance from one person to another, whether that transfer is actual or constructive, and whether or not there is an agency relationship. It also includes an attempted transfer. M.C.L.A. § 335.304(1); M.S.A. § 18.1070(4)(1). Dispensation and distribution are defined as specific types of delivery. "Dispensation" is a delivery of a controlled substance to an ultimate user pursuant to the lawful order of a practitioner. The statute explicitly provides that dispensation includes the "prescribing * * * necessary to prepare the substance [73 MICHAPP 608] for that delivery". M.C.L.A. § 335.304(2); M.S.A. § 18.1070(4)(2). Hence, if a doctor writes a prescription pursuant to which a controlled substance is delivered to another, the doctor is "dispensing" that substance. To say that the doctor who dispenses the controlled substance does not deliver it seems inconsistent with the basic definition of dispensation as a "delivery" to an ultimate user pursuant to lawful order. In our judgment, therefor, when Dr. Alford prescribed amphetamines for officer Kukalis, he was delivering to him a controlled substance.

Similarly "distribution" is also a delivery. The statute defines "distribution" as a delivery of a controlled substance which is accomplished other than by administering ³ or dispensing. M.C.L.A. § 335.304(4); M.S.A. § 18.1070(4)(4). Thus, when Dr. Alford handed barbiturates to Officer Kukalis, he was delivering a controlled substance.

Our next determination is directed to whether M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1) exempts a registered physician from prosecution for delivery of controlled substances without qualification. In considering this issue it is appropriate for us to look to Federal precedent for guidance, since the Controlled Substances Act of 1971 was modeled after the Federal act. Michigan Employment Relations Commission v. Reeths-Puffer School District, 391 Mich. 253, 260, 215 N.W.2d 672 (1974); Citizens for Better Care v. Department of Public Health, 51 Mich.App. 454, 463, 215 N.W.2d 576 (1974), lv. den. 392 Mich. 758 (1974).

[73 MICHAPP 609] In Michigan delivery of a controlled substance is unlawful except as authorized under the Act. M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1). ⁴ Likewise, the Federal counterpart makes it unlawful to distribute or dispense a controlled substance except as specifically authorized. 84 Stat. 1260 (1970), 21 U.S.C. § 841(a)(1). ⁵

Authorization is granted in this state pursuant to M.C.L.A. § 335.332(2); M.S.A. § 18.1070(32)(2), which provides:

"(2) 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."

Dr. Alford was registered by the administrator and was therefore authorized to distribute, prescribe or dispense controlled substances to the extent authorized by his registration and in conformity with chapter three of the Act. M.C.L.A. §§ 335.331-.338; M.S.A. §§ 18.1070(31)-(38).

In very similar language, authorization is granted under the Federal scheme pursuant to 84 Stat. 1253 (1970), 21 U.S.C. § 822(b). It provides:

"(b) Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense[73 MICHAPP 610] controlled substances are authorized to possess, manufacture, distribute, or dispense such substances (including any such activity in the conduct of research) to the extent authorized by their registration and in conformity with the other provisions of this subchapter."

In United States v. Moore, 423 U.S. 122, 132-133, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), Justice Powell, writing for a unanimous Supreme Court, construed this provision as granting a qualified authorization, not a general authorization intended to legitimize all activities of registered physicians simply because of their registration. He concluded that the "scheme of the statute, viewed against the background of the legislative history, reveals an intent to limit a registered physician's dispensing authority to the course of his 'professional practice' ". United States v. Moore, supra, 140, 96 S.Ct. 344.

In Moore the court investigated the legislative history of the Act and determined that it was intended "to 'strengthen', rather than to weaken, 'existing law enforcement authority in the field of drug abuse' ", United States v. Moore, supra, 132, 96 S.Ct. 341. A blanket exemption for physicians would constitute a sharp departure from prior law. The legislative history revealed no congressional intent to create such an exemption. United States v. Moore, supra.

The legislative history of the Controlled Substances Act of 1971 ⁶ gives no indication that the Michigan Legislature intended to grant such an exemption to physicians. Nor will we lightly infer such an intent existed, where it is in direct conflict with prior law. See 1937 P.A. 343, § 7, as amended, People v. Downes, 394 Mich. 17, 228 N.W.2d 212 (1975).

The Moore court then proceeded to examine the [73 MICHAPP 611] scheme of the Federal act. For example it pointed to 84 Stat. 1242 (1970), 21 U.S.C. § 802(20), which provides:

"(20) The term 'practitioner' means a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research."

Justice Powell concluded that this provision defined practitioner...