Raber v. State

674 S.E.2d 884, 285 Ga. 251, 2009 Fulton County D. Rep. 1019, 2009 Ga. LEXIS 95
CourtSupreme Court of Georgia
DecidedMarch 23, 2009
DocketS08A1705
StatusPublished
Cited by7 cases

This text of 674 S.E.2d 884 (Raber v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raber v. State, 674 S.E.2d 884, 285 Ga. 251, 2009 Fulton County D. Rep. 1019, 2009 Ga. LEXIS 95 (Ga. 2009).

Opinions

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 [252]*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).

[253]*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 § [254]*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.

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Raber v. State
674 S.E.2d 884 (Supreme Court of Georgia, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
674 S.E.2d 884, 285 Ga. 251, 2009 Fulton County D. Rep. 1019, 2009 Ga. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raber-v-state-ga-2009.