Opinion
44352 Record No. 811716.
September 9, 1982.
Present: All the Justices.
For a conviction under Code Sec. 18.2-258.1(A)(iv) prohibiting the use of a false name or address in obtaining drugs, when the Commonwealth proves defendant used a false name the burden is on the defendant to show his motivation in using the false name was innocent; statute is constitutional and evidence sufficient to infer culpable motivation.
(1) Criminal Law — Controlled Substances — Obtaining Drugs, Proving Administration of Controlled Substances, Etc., by Use of False Name or Address [Code Sec. 18.2-258.2(A)(iv)] — Statutory Construction — Purpose of Section is to Aid in Curbing Excessive Use of Drugs and the Obtaining of Drugs Unlawfully.
(2) Criminal Procedure — Controlled Substances — Drug Control Act (Code Sec. 54-524.1, et seq.) — Persons Required to Keep Record of Drugs, Etc. [Code Sec. 54-524.56(b1) and (e)] — Access to and Copies of Records (Code Sec. 54-524.57) — Records Confidential (Code Sec. 54-524.58) — Obtaining Drugs, Proving Administration of Controlled Substances, Etc., by Use of False Name or Address [Code Sec. 18.2-258.1(A)(iv)] — Code Sec. 18.2-258.1(A)(iv) and Drug Control Act (Code Sec. 54-524.1, et seq.) Should be Read Together and Reveal Legislative Intent to Insure Completeness and Accuracy of Drug Control Records and to Aid Law Enforcement Role of Records by Penalizing Use of False Name in Obtaining or Attempting to Obtain Controlled Drug.
(3) Criminal Procedure — Controlled Substances — Statutory Construction — Obtaining Drugs, Proving Administration of Controlled Substances, Etc., by Use of False Name or Address [Code Sec. 18.2-258.1(A)(iv)] — Inquiry Should Be Whether Motivation in Using False Name Culpable or Innocent.
(4) Criminal Procedure — Controlled Substances — Burden of Proof — Obtaining Drugs, Proving Administration of Controlled Substances, Etc., by Use of False Name or Address [Code Sec. 18.2-258.1(A)(iv)] — When Commonwealth Shows Accused Has Used False Name, Burden Shifts to Accused to Go Forward With Evidence to Show Motivation was Innocent.
(5) Criminal Procedure — Constitutional Law — Due Process — Statutory Construction — Obtaining Drugs, Proving Administration of Controlled Substances, Etc., by Use of False Name or Address [Code Sec. 18.2-258.1(A)(iv)] — Section Constitutional as Interpreted.
Sometime before January 15, 1980, defendant was injured in an automobile accident. After being treated for "broken bones" by Dr. Durica, he was sent to Dr. Swan for treatment of "some neurological damage." Defendant identified himself to Dr. Swan not by his true name, but as Jimmy David Johnson. Throughout 1980, Dr. Swan gave defendant several prescriptions for Dilaudid, a pain killer. However, Dr. Swan became suspicious of defendant and called the police. On September 4, 1980, defendant received a prescription from Dr. Swan and had it filled. When he left the pharmacy, he was stopped by police officers. He admitted to using a false name, but stated that he was unaware that he had broken the law. At defendant's trial for violation of Code Sec. 18.2-258.1(A)(iv), Dr. Swan stated that it did not matter that defendant used a false name, but that he would have prescribed Dilaudid in any event as the appropriate treatment for his condition. Defendant was convicted, sentenced, and appeals.
1. The purpose of Code Sec. 18.2-258.1(A)(iv) is to aid in curbing the excessive use of drugs and the obtaining of drugs unlawfully, and not to protect physicians and pharmacists from fraud or deceit in their issuance and filling of prescriptions.
2. In the Drug Control Act, Code Sec. 54-524.1, et seq., the General Assembly established a system of record-keeping designed to reflect the identity of all persons to whom controlled drugs are sold, administered, or dispensed. In determining legislative intent, Code Sec. 18.2-258.1(A)(iv) and the Act should be read together, revealing an intent to insure the accuracy and completeness of drug-control records and to aid their law enforcement role by penalizing the use of a false name in obtaining or attempting to obtain a controlled drug. To require the Commonwealth to prove that a prescription would not have been written or filled but for the use of a false name would be to subvert that intent.
3. Under Code Sec. 18.2-258.1(A)(iv) the inquiry should be whether the motivation of the person using the false name was culpable or innocent.
4. Under Code Sec. 18.2-258.1(A)(iv), when the Commonwealth shows that the accused has used a false name, a prima facie violation is established, and the burden shifts to the accused to go forward with evidence showing his motivation to use a false name was innocent. Here there was evidence from which the Trial Court could infer that the motivation was culpable.
5. Code Sec. 18.2-258.1(A)(iv) is constitutional. The section, as interpreted, specifies with reasonable certainty and definiteness the conduct which is prohibited so a person of ordinary intelligence may know what is thereby required of him.
Appeal from a judgment of the Circuit Court of the City of Portsmouth. Hon. William H. Oast, Jr., judge presiding.
Affirmed.
Lawrence W. Fary (Walton G. Bondurant, Jr., on brief), for appellant.
J. Steven Sheppard, III, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
Code Sec. 18.2-258.1(A)(iv) provides that it shall be unlawful for any person to obtain or attempt to obtain any drug "by the use of a false name." The defendant, David J. McCutcheon, was convicted under this provision and sentenced to three years' imprisonment. The principal question in the case is whether the statute requires the Commonwealth to show a causal relationship between the use of a false name and the procurement of a drug.
The Code section also makes it unlawful to obtain or attempt to obtain drugs by "the giving of a false address." Because this case involves only the use of a false name, we will not again mention the false address aspect of the statute.
The record shows that sometime prior to January 15, 1980, the defendant was injured in an automobile accident. He was treated for "broken bones" by a Dr. Durica, who sent him to Dr. Robert Swan for treatment of "some neurological damage." The defendant identified himself to Dr. Swan, not by his true name, but as Jimmy David Johnson. Dr. Swan treated the defendant throughout 1980, giving him several prescriptions for Dilaudid, a pain killer.
Becoming suspicious of the defendant, Dr. Swan called the police. On September 4, 1980, the defendant, still posing as Johnson, visited Dr. Swan and secured from him a prescription for Dilaudid. Police officers observed the defendant as he left the doctor's office, drove to a pharmacy, and had the prescription filled. When he exited the pharmacy, the officers stopped him, advised him he was under investigation, and asked him what was in the pill bottle. The defendant "took [the bottle] out" and said: "I didn't know I broke the law. I did use a false name." He was then placed under arrest and charged with obtaining the Dilaudid by the use of a false name.
Testifying below, Dr. Swan acknowledged that Dilaudid was "a proper drug to prescribe" for treatment of the defendant's symptoms. The doctor also conceded "it didn't matter" that the defendant had given him a false name; he had not been "tricked or in any way induced" to prescribe the drug for the defendant. Dr. Swan added that, even after the incident of September 4, 1980, when he learned the defendant's real name, he continued to prescribe Dilaudid in treating the defendant because "it was still a proper drug . . . under the circumstances."
The defendant contends that the evidence was insufficient to support his conviction. He argues that the Commonwealth had the burden of proving Dr. Swan would not have issued the September 4 prescription but for the use of a false name. The Commonwealth failed in this burden, the defendant maintains; indeed, Dr. Swan admitted that he had not been tricked into issuing the prescription and that, because the defendant needed the drug, he would have prescribed Dilaudid even had he known about the use of a false name.
On the other hand, the Attorney General contends that the Commonwealth was not required to prove a causative connection between the defendant's use of a false name and Dr. Swan's issuance of the prescription. Under Code Sec. 18.2-258.1(A)(iv), the Attorney General asserts, the Commonwealth establishes a violation when it shows the accused obtained a controlled substance "while using a false name." The Commonwealth proved this violation, the Attorney General submits, and it is irrelevant whether Dr. Swan relied upon the false name or whether use of the name motivated the doctor's issuance of the prescription.
We agree with the Attorney General. In our opinion, the purpose of Code Sec. 18.2-258.1(A)(iv) is not to protect physicians and pharmacists from fraud or deceit in their issuance and filling of prescriptions, although this protection may be an incidental result of the statute's enforcement. Rather, the statute's purpose, we believe, is to aid in curbing the excessive use of drugs and the obtaining of drugs unlawfully. This has been held the purpose of similar statutes. E.g., State v. St. John, 544 S.W.2d 5, 8 (Mo. 1976); State v. Lee, 62 Wn.2d 228, 233, 382 P.2d 491, 494 (1963).
[2-3] Code Sec. 18.2-258.1(A)(iv) is included in Article 1, Chapter 7 of Title 18.2. Article I contains a series of sections relating to all facets of illegal drug traffic, including possession, sale, and distribution. Several of these Code sections, including Sec. 18.2-258.1, refer specifically to the Drug Control Act, Code Sections 54-524.1 et seq. Section 54-524.56(b1), a part of that Act, imposes upon each person selling, administering, or dispensing drugs the duty of recording the name and address of the person to whom or for whose use a drug is sold, administered, or dispensed, together with the kind and quantity of the drug involved. These records must be maintained "completely and accurately" for a period of two years, Code Sec. 54-524.56(e), and they shall be open for inspection by agents of the State Board of Pharmacy, Code Sec. 54-524.57, who may divulge their knowledge of the records in connection with a prosecution or proceeding involving the person to whom the records relate. Code Sec. 54-524.58.
When we examine these provisions of the Drug Control Act, we find that the General Assembly has established a system of record-keeping designed to reflect the identity of all persons to whom controlled drugs are sold, administered, or dispensed. These records, the Act states, shall be complete and accurate and, as the Act permits, their contents may be divulged for law-enforcement purposes.
We believe that, in determining legislative intent, Code Sec. 18.2-258.1(A)(iv) and the Act should be read together. This reading reveals the intent to insure the accuracy and completeness of drug control records and to aid their law-enforcement role by penalizing the use of a false name in obtaining or attempting to obtain a controlled drug.
This legislative intent would be subverted, in our opinion, by requiring the Commonwealth to prove that a prescription would not have been written or filled but for the use of a false name. The adoption of this requirement would render Code Sec. 18.2-258.1(A)(iv) virtually inoperative against a person "with a seemingly legitimate complaint" who is wont to use "a different name . . . in any number of physicians' offices [or] pharmacies" in an effort to obtain a supply of drugs. State v. Lee, 62 Wn.2d at 233, 382 P.2d at 494.
Such a person is an obvious target of the statute's focus. Application of a "but for" rule, however, would place the statute's emphasis upon a physician's or pharmacist's motivation to write or fill a prescription. Where, as here, the doctor's motivation is to heal the sick, the user of a false name would go unpunished. We believe that the emphasis should be placed where it was intended, viz., upon the motivation of the person using a false name, and that the inquiry should be whether the motivation is culpable or innocent.
In our view of Code Sec. 18.2-258.1(A)(iv), when the Commonwealth shows that the accused has used a false name in obtaining or attempting to obtain a drug, a prima facie violation is established. The burden then shifts to the accused to go forward with evidence showing that his motivation to use a false name was innocent.
This record shows the nature of the defendant's motivation. He testified that he gave Dr. Swan a false name "to get the drugs" and that he "needed the drugs for pain." He said he was "embarrassed to use [his] real name" because his brother was a "junkie" and abused drugs and he was "ashamed of him." From these statements, the trial court could have inferred that the McCutcheon name was well known on the local drug scene and that the defendant feared he would not have gotten drugs from Dr. Swan under his real name.
The defendant contends also that, unless we place a "but for" interpretation upon Code Sec. 18.2-258.1(A)(iv), the statute would be unconstitutionally vague. We disagree. A statute passes constitutional muster if it specifies "with reasonable certainty and definiteness the conduct which is commanded or prohibited . . . so that a person of ordinary intelligence may know what is thereby required of him." Caldwell v. Commonwealth, 198 Va. 454, 458, 94 S.E.2d 537, 540 (1956). We believe that the Code section in question passes this test: it tells any person of ordinary intelligence not to use a false name when he obtains or attempts to obtain drugs.
For the reasons assigned, the judgment of the trial court will be affirmed.
Affirmed.