State v. Best, 32

CourtUnited States State Supreme Court of North Carolina
Citation292 N.C. 294,233 S.E.2d 544
Decision Date14 April 1977
Docket NumberNo. 32,32
PartiesSTATE of North Carolina v. Andrew Arthur BEST.

Rufus L. Edmisten, Atty. Gen., by Joan H. Byers, Associate Atty., Raleigh, for the State of N. C.

James, Hite, Cavendish & Blount by Marvin Blount, Jr., Greenville, of counsel for defendant-appellant.

HUSKINS, Justice:

The defendant, Dr. Best, was arrested on 26 March 1975, pursuant to a warrant charging him with violation of G.S. 90-95(a)(1). That statute reads in pertinent part as follows:

"(a) Except as authorized by this Article, it is unlawful for any person:

(1) To manufacture, sell or deliver . . . a controlled substance;" (Emphasis added.)

Defendant was indicted and convicted under charges that on two occasions he "unlawfully and wilfully did feloniously sell and deliver a controlled substance, to wit: Methylphenidate in the form of Ritalin, which is included in Schedule II of the North Carolina Controlled Substances Act, not within the normal course of his professional practice, to M. T. Owens, Special Agent, SBI, Diversion Investigative Unit." (Emphasis added.)

Evidence elicited at trial tends to show that on 27 February 1975 and 19 March 1975 Dr. Best gave prescriptions to SBI Agent M. T. Owens for Ritalin, a Schedule II Controlled Substance. The State produced one expert witness who stated that under similar circumstances, related in a hypothetical question, the conduct of the doctor in prescribing the drug was outside the normal course of professional practice in North Carolina and not for a legitimate medical purpose.

At the close of the State's evidence defendant's motion to dismiss was denied. This motion was renewed at the close of all the evidence and is properly before this Court. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974).

We have said that a defendant must be convicted, if at all, of the particular offense charged in the bill of indictment. "Whether there is a fatal variance between the indictment and the proof is properly presented by defendant's motion to dismiss." State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). Thus the threshold question presented by this case is whether the offense charged conforms to the evidence elicited; that is, does the action of a physician in prescribing a controlled substance amount to a "sale or delivery" as proscribed by G.S. 90-95(a)(1)? For the reasons which follow, we hold that it does not.

The North Carolina Controlled Substances Act (Article 5 of Chapter 90 of the General Statutes) is not a model of clarity or good draftmanship and, with respect to particular applications, its interpretation is clouded by gaps and inconsistencies. Analysis of the entire Act compels the conclusion that the Legislature has established parallel systems of regulation for controlled substances. The separate systems are distinguished according to the nature of the transaction and the status of the individuals involved. Simply put, one system applies to "street traffickers," while the second regulates the dispensation of controlled drugs for legitimate medical purposes. Within each system there are further gradations, based generally on the seriousness of the drug involved and the nature of the transaction. For example, compare G.S. 90-95(b)(1) with G.S. 90-95(b)(2) and G.S. 90-95(b) with G.S. 90-95(c).

Prior to 1971, drug transactions were regulated in North Carolina through the Uniform Narcotic Drug Act, Article 5 of Chapter 90 of the General Statutes (1965), and Barbiturate and Stimulant Drugs, Article 5A of Chapter 90 of the General Statutes (1965). Under that scheme, the statute under which a defendant was prosecuted was determined by the nature of the drug involved. Thus under Article 5 it was unlawful for a person to "manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized . . . ." G.S. 90-88 (1965). "Narcotic drugs" included coca leaves, opium, cannabis, and others chemically similar. G.S. 90-87(9) (Cum.Supp.1969). Prescribing, administering and dispensing were specifically authorized when done in good faith and in the course of professional practice. G.S. 90-94 (1965). The penalty for a first violation of that article was a fine of not more than $1,000 or imprisonment for not more than five years. G.S. 90-111 (Cum.Supp.1969). Penalties for subsequent violations were higher.

In 1971 the Legislature made basic changes in North Carolina drug laws, bringing them into closer alignment with Federal law, 21 U.S.C. §§ 801, et seq., and with the Uniform Controlled Substances Act found in Volume 9 of The Uniform Laws, Annotated.

In skeletal form the present system of control over physicians operates as follows: (1) All transactions with controlled substances are prohibited by G.S. 90-95 except as authorized. (2) Under G.S. 90-101 a physician who meets established objective criteria is authorized to make certain transactions with controlled substances and thus is exempted from the proscriptions of G.S. 90-95. (3) Control is reasserted under G.S. 90-108 whereby the physician's actions with respect to these transactions must be within the normal course of professional practice in this State and for a legitimate medical purpose. We now look at the scheme in more detail.

We initially note that in the 1971 enactment, schedules were set up classifying various drugs based upon potential for abuse and accepted medical use. See G.S. 90-88 to 94. Then by enactment of G.S. 90-95 (Cum.Supp.1971), the General Assembly provided as follows:

"(a) Except as authorized by this Article, it shall be unlawful for any person:

(1) To manufacture, distribute or dispense or possess with intent to distribute a controlled substance listed in any schedule of this Article;

(2) To create, distribute or possess with intent to distribute a counterfeit controlled substance included in any schedule of this Article;

(3) To possess a controlled substance included in any schedule of this Article."

G.S. 90-95 was amended in 1973 to read:

"(a) Except as authorized by this Article, it is unlawful for any person:

(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;

(2) To create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance;

(3) To possess a controlled substance."

This statute prohibits any person from manufacturing, selling, delivering or possessing with intent to manufacture, sell or deliver, a controlled substance, except as authorized by Article 5. We now examine Article 5 to determine what transactions it authorizes.

G.S. 90-101 in pertinent part provides:

"(b) Persons registered by the North Carolina Drug Authority under this Article (including research facilities) to manufacture, distribute, dispense or conduct research with controlled substances may possess, manufacture, distribute, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this Article.

(c) The following persons shall not be required to register and may lawfully possess controlled substances under the provisions of this Article:

(4) Practitioners licensed in North Carolina by their respective licensing boards under Articles 1, 2, 4, 6, 11 and 12 of this Chapter."

By these provisions a registrant is specifically authorized to manufacture, distribute, dispense, or conduct research with certain controlled substances. A practitioner is authorized to dispense and distribute.

We note that under the language of G.S. 90-101(c)(4) a practitioner is only permitted to "possess" controlled substances. Normally the plain words of a statute control; however, where a literal interpretation will lead to an absurd result and contravene the manifest purpose of the statute, the reason and purpose of the law will be given effect and the strict letter disregarded. 7 N.C. Index 2d, Statutes § 5 and cases cited. In this instance it seems apparent that the Legislature intended to permit those practitioners listed in G.S. 90-101(c)(4) not only to possess but also to distribute and dispense controlled substances as authorized by Article 5. Compare G.S. 90-101 with G.S. 90-102(c), G.S. 90-105 and G.S. 90-106.

Thus the registrant or practitioner is, by his status, exempted from the proscriptions of G.S. 90-95. By the language of G.S. 90-101 this exemption is subject only to the requirement that the person claiming the exemption meet the following objective criteria : The person claiming the exemption must be a registrant, G.S. 90-87(25), or not required to register, G.S. 90-101(c)(4); and exemption from the provisions of G.S. 90-95 applies only when (a) persons claiming the exemption are engaged in transactions authorized by their registration and (b) those transactions involve drugs authorized by their registration. G.S. 90-101(b) and (c)(4). A detailed breakdown of particular registration limitations is provided in I North Carolina Administrative Code, ch. 14, §§ .0105 and .0106.

We reemphasize that the standards are objective and, when met, exempt those who qualify from the proscriptions and penalties of G.S. 90-95. We do not construe G.S. 90-101(c)(4) as incorporating a subjective standard through use of the word "practitioners." Subsection (c)(4) is not found in the Uniform Controlled Substances Act or the Federal Controlled Substances Act. It was added in North Carolina law for the purpose of exempting from registration those persons licensed under the articles enumerated in said subsection, to wit: those licensed to practice medicine, dentistry, pharmacy, optometry, veterinary medicine, and podiatry. While technically a non-registrant would be exempted only when he was a "practitioner," and thus exempted only "so long as such activity is within the...

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