Opinion
ROTH, P. J. Petitioner Charles E. Baker seeks a writ prohibiting the respondent court from proceeding with a trial on seven counts, each charging violation of Health and Safety Code section 11912.
The facts underlying the charges are fairly summarized in the People’s brief:
“Each count involves the same basic factual situation: defendant, a doctor (whether it was adequately shown that he was licensed being in dispute), wrote a prescription without any showing of medical need therefor, simply at the request of the ‘patient.’ In fact, these ‘patients’ were undercover operatives. Defendant charged and collected $10 for each prescription. The undercover operators did not go further and have the prescriptions filled by a pharmacist. Thus, there was never any physical obtaining of the dangerous or narcotic drugs prescribed. Each prescribing of dangerous drugs was charged in the information as a count of violation of Health & Safety Code section 11912. These are the only counts in issue in the instant writ proceeding.”
Section 11912 of the Health and Safety Code provides in relevant part: “Except as otherwise provided in Article 8 (commencing with Section 4210) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, manufactures, compounds, furnishes, administers, or gives away, or offers to transport, import into this state, sell, manufacture, compound, furnish, administer, or [126]give away, or attempts to import into this state or transport any restricted dangerous drug, except upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of five years to life. . . .”
The People seek to justify the prosecution under section 11912 by the argument that the act of prescribing is equivalent to selling or furnishing and that since the prescriptions issued by petitioner were not for “proper medical purposes,” petitioner is not within the exception to section 11912. This position is basically unsound and rests on a series of misinterpretations of specific statutes, as well as a misreading of the relevant statutory scheme.
Division 10.5, added to the Health and Safety Code in 1965 and comprehensively amended in 1970, is a separate division thereof. So much ought to be apparent from the fact that it is not in division 10 (narcotics) nor of course in division 11 (explosives) but in one separately enacted as division 10.5 (restricted dangerous drugs). Indeed, the Legislature left no room for doubt on this point when, in the initial section of division 10.5, it declared that “This division shall be known as the ‘Drug Abuse Control Act of 1970.’ ” (Italics added.) (§ 11900.)
Section 11903, found in division 10.5, defines “prescription” in subdivision (a) as an order given individually for the person for whom prescribed “directly from the prescribed to the furnisher or indirectly by means of an order signed by the prescriber, . . .” (Italics added.) “Furnish” is defined in subdivision (j) of this section by reference to section 4048.5 of the Business and Professions Code which in turn states that this term means “. . . to supply by any means, by sale or otherwise.” In other words, there are three parties when a drug is prescribed: the patient, the pharmacist who supplies or “furnishes,” and the doctor who prescribes. Appropriately enough, division 10.5 as well as companion statutes undertake to regulate the duties and responsibilities of those who “furnish,” in other words the pharmacists, separately from those who “prescribe,” the doctors, since the acts of each are qualitatively and obviously different.
The People’s claim that the “prescription” section of division 10, to wit: section 11162.5, which by its terms is applicable to “this division,” applies by virtue of that language to division 10.5 is, of course, in error, as we have shown above. “Prescription” is defined in division 10.5 by section 11903, subdivision (a), see supra. Moreover, section 11162.5 speaks of “narcotics,” dealt with in division 10, and not restricted to dangerous drugs, the subject of division 10.5.
[127]All drugs prescribed by doctors, whether narcotic or otherwise, could be classified as restricted dangerous drugs. It may be that the Legislature, with calculation, drew a distinction between dangerous drugs and narcotics which latter could certainly be embraced in the former to’ avoid penalizing the public or the doctor by circumscribing a doctor’s judgment with penal sanctions if such judgment were exercised mistakenly or negligently but in good faith. The Legislature could have properly felt that proof of mistakes in judgment in prescribing drugs, even though made in good faith, and certainly an abuse of the doctor’s right to prescribe, should be the subject of disciplinary action under the provisions of Business and Professions Code, rather than penal sanctions.
It should be noted, too, that the definition of “dangerous drugs” is somewhat open-ended (Health & Saf. Code, § 11901) thus providing a further reason for distinguishing between dangerous drugs and narcotics.
The People concede that no drugs were ever obtained by means of these prescriptions. This concession is irrelevant to the charge made against petitioner, namely prescribing a dangerous drug without a medical examination. That act is proscribed as unprofessional conduct in section 2399.5 of the Business and Professions Code.1 We note that section 11912 of the Health and Safety Code is by its very terms subjected to sections 4210 et seq. of the Business and Professions Code and that it is thus apparent that conduct (or misconduct) specifically regulated by sections 4210 et seq. of the Business and Professions Code is not meant to be governed by the provisions of section 11912 of the Health and Safety Code. Section 2399.5 of the Business and Professions Code is specifically referenced to section 4211 of the same code, demonstrating that the Legislature had no intention of punishing the prescription of a dangerous drug without a medical examination (§ 2399.5) as a sale or even offer of sale (§ 11912, Health & Saf. Code) of a dangerous drug.
The People’s reliance on People v. Jack, 233 Cal.App.2d 446 [43 Cal.Rptr. 566], to support the theory that petitioner can be brought within section 11912 of the Health and Safety Code since the act of prescribing is equivalent to an “offer” (§ 11912) to sell is utterly self-defeating. In Jack, the prosecution was under section 4237 of the Business and Professions Code (forging prescriptions) which is precisely the" code to which the state should resort in this case.
The prosecution at bench under section 11912 of the Health and Safety Code is not tenable.
[128]Let a peremptory writ issue prohibiting respondent court from taking further proceedings herein as to counts I, II, III, IV, V and VI and X of the information in superior court case No. A-011467.
Fleming, J., concurred.
‘‘Prescribing dangerous drugs as defined in Section 4211, without either a prior examination of the patient or medical indication thereof, constitutes unprofessional conduct within the meaning of this chapter.”