State v. Sway

• Decision Date: 31 December 1984
• Docket Number: No. 84-383,84-383
• Citation: 472 N.E.2d 1065,15 OBR 265,15 Ohio St.3d 112
• Parties: , 15 O.B.R. 265 The STATE of Ohio, Appellant, v. SWAY, Appellee.
• Court: Ohio Supreme Court

Page 112

15 Ohio St.3d 112

472 N.E.2d 1065, 15 O.B.R. 265

The STATE of Ohio, Appellant, v. SWAY, Appellee.

No. 84-383.

Supreme Court of Ohio.

Dec. 31, 1984.

Syllabus by the Court

A physician who unlawfully issues a prescription for a controlled substance not in the course of the bona fide treatment of a patient is guilty of selling a controlled substance in violation of R.C. 2925.03.

Appellee, Daniel H. Sway, is a physician duly licensed to practice medicine in the state of Ohio. He maintains an office in the College Hill area of Cincinnati. On November 18, 1982, the Hamilton County Grand Jury returned an indictment which charged Dr. Sway with seventeen counts of selling a controlled substance in violation of R.C. 2925.03(A)(1).

A review of the bill of particulars indicates that appellee is charged with the delivery of written prescriptions to a female patient in exchange for sexual relations. It is alleged that appellee wrote prescriptions for various quantities of percodan (oxycodone), methaqualone and dilaudid (hydromorphone), all controlled substances as defined in R.C. 3719.41. The bill also alleged that Dr. Sway failed to conform to the minimal standards of his profession in prescribing the medication.

Counsel for appellee subsequently filed a motion to dismiss the indictment. The trial court granted appellee's motion on the basis that under the facts presented the numerous deliveries of prescriptions were not "sales" in violation of R.C. 2925.03(A)(1). The rationale of the trial court was that appellee had merely sold written prescriptions, not controlled substances as required under the statute. In a split decision, the court of appeals affirmed the order dismissing the indictment.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Arthur M. Ney, Jr., Pros. Atty., and William E. Breyer, Asst. Pros. Atty., for appellant.

Bauer, Morelli & Heyd Co., L.P.A., and Arnold Morelli, Cincinnati, for appellee.

HOLMES, Justice.

In this appeal, we are asked to determine whether a physician who unlawfully issues prescriptions knowing that they will be used for illicit drug trafficking can be found guilty of a criminal "sale" under R.C. 2925.03(A)(1). A majority of the appellate court answered this query in the negative. However, based on the following, we reverse.

Our analysis begins by reviewing the statutory provisions in question. R.C. 2925.03(A) states in pertinent part:

"No person shall knowingly do any of the following:

"(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount as defined in section 2925.01 of the Revised Code; * * * "

For the purposes of R.C. 2925.03, "sale" is defined by R.C. 3719.01(EE) to include delivery, barter, exchange, transfer, gift, or offer thereof.

We have no problem in finding, and the parties do not question, that a "sale" took place here. If the allegations are proven, then the exchanges of prescriptions in return for sex would constitute "sales" under R.C. 3719.01(EE). Thus, the debating point is whether the sale of prescriptions is equivalent to the sale of illicit drugs in violation of R.C. 2925.03.

Initially, appellee contends that certain provisions of the state's drug offense laws preclude this court from finding a physician criminally liable under R.C. 2925.03(A)(1). It is appellee's view that only R.C. 2925.23 and 3719.06(A) regulate a physician's liability for the unlawful prescription of controlled substances. We disagree.

A study of the overall legislative scheme concerning drug offenses is beneficial. Originally, some provisions now within R.C. Chapter 2925 were a part of R.C. Chapter 3719. In an attempt to strengthen prior laws, the General Assembly enacted a comprehensive drug abuse statute currently comprised in R.C. Chapter 2925. Now, R.C. Chapter 3719 only contains what is known as the Uniform Controlled Substances Act.

Turning to appellee's argument, R.C. 2925.23 prohibits the illegal processing of drug documents. The statute forbids false or forged prescriptions, or theft of prescription forms. We are of the opinion that R.C. 2925.23 specifically deals with obtaining a drug from an unsuspecting physician by fraud, theft, or deceit--not procuring a controlled substance from a knowing physician who is acting outside the bounds of his profession.

R.C. 3719.06 specifies the standards and dispensing procedures for physicians in prescribing and administering medication which is listed as a controlled substance. The provision requires a licensed practitioner to include information on the prescription form such as the date of issuance, and the full name and address of the individual receiving the medication. The statute merely addresses the contents of a prescription and it does not speak to the unlawful transfer of a prescription. Furthermore, the penalties for a violation of the statute could hardly have been deemed by the General Assembly to be an appropriate sanction for drug trafficking by a registered physician.

This rationale is further supported by R.C. 2925.03(B) which states that a practitioner is not liable for drug trafficking under subsection (A)(1), (3) or (4) of the statute if his conduct is in accord with the regulations contained in, inter alia, R.C. Chapters 3719 and 4731. Reading the provision conversely, we believe that if a physician does not act in accordance with such regulations he is subject to criminal liability under R.C. 2925.03(A) when his actions fall therein. It is patently clear from the facts presented that Dr. Sway did not conform to the directives specifically set forth in R.C. 4731.22 as he departed from the minimal standards of his profession when he unlawfully prescribed the illicit drugs in question. Thus, we are unable to find any statutory provision which would preclude us from finding appellee liable under R.C. 2925.03(A).

This court has recently interpreted R.C. 2925.03(A)(1) on two separate occasions. In State v. Scott (1982), 69 Ohio St.2d 439, 432 N.E.2d 798 , the defendant represented to an undercover agent that he was selling amphetamines when, in fact, the tablets did not contain any trace of the drug. In writing for the majority, Justice Locher noted that the nature of the substance delivered does not necessarily determine whether an individual has offered to sell an illegal narcotic. Thus, we held that "[a] person can 'offer to sell a controlled substance' in violation of R.C. 2925.03(A)(1) without transferring a controlled substance to the buyer." Id. at the syllabus. The General Assembly codified our ruling in R.C. 2925.37.

Also, in State v. Patterson (1982), 69 Ohio St.2d 445, 432 N.E.2d 802 , this court relied on the Scott rationale and held that the failure to physically deliver a controlled substance is not an absolute defense to an indictment alleging a violation of R.C. 2925.03(A). We specifically stated that a "[f]ailure to deliver [a drug] does not ipso facto exonerate the accused." Id. at 447, 432 N.E.2d 802.

From a reading of Scott and Patterson, it is clear that an individual does not have to actually deliver the physical substance to violate the statute. Based on this, we believe that the sale of a completed prescription form is sufficiently analogous to the sale of an illicit drug as to warrant the same conclusion.

A physician cannot insulate himself from criminal liability by arguing that he sold an unlawful prescription, instead of a narcotic drug. The General Assembly did not intend such a distinction. Whether a doctor sells a prescription for the drug or sells the drug itself, the result is the same: the unlawful commerce of a controlled substance. It is contrary to the dictates of public policy to claim that the General Assembly did not intend to exercise some degree of restraint in R.C. 2925.03(A) over the class of society which has almost unlimited access to the drugs sought to be controlled by the statute.

Therefore, we hold that a physician who unlawfully issues a prescription for a controlled substance not in the course of the bona fide treatment of a patient is guilty of selling a controlled substance in violation of R.C. 2925.03.

Our conclusion reached today is supported by other state and federal jurisdictions. It was established by the United States Supreme Court in Jin Fuey Moy v. United States (1920), 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214, that "selling" within the meaning of the now superseded Harrison Anti-Narcotic Act was not solely confined to the parting of one's own property. Rather, the court held that a physician may participate in a sale of illicit drugs by unlawfully issuing a prescription to another individual who effects the sale. Id. at 194, 41 S.Ct. at 100. Most federal courts follow Jin Fuey Moy in cases dealing with the more recently enacted federal Controlled Substances Act (Section 801 et seq., Title 21, U.S.Code). This line of authority states that a doctor may be convicted for the unlawful dispensing of a controlled substance if the prescription is not for a legitimate medical purpose. ¹

The overwhelming number of states addressing this issue have upheld the convictions of physicians under their respective statutes for the sale or delivery of a written prescription. Commonwealth v. Comins (1976), 371 Mass. 222, 356 N.E.2d 241, certiorari denied (1977), 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793; State v. Moody (La.1981), 393 So.2d 1212; People v. Alford (1979), 405 Mich. 570, 275 N.W.2d 484; State v. Weeks (Fla.1976), 335 So.2d 274; Anderson v. State (1973), 231 Ga. 243, 201 S.E.2d 147. We are aware of only one jurisdiction, New York, which holds to the contrary. It is interesting to note, however, that the state of New York has two pertinent statutory provisions: one that prohibits the unlawful sale of drugs (N.Y.Penal Law [Consol.1973], Section 220.31 et seq.), and another which prohibits the unlawful prescribing of narcotic drugs (N.Y. Public...