Alarcon v. State

Citations: 573 N.E.2d 477; 1991 Ind. App. LEXIS 980; 1991 WL 107894Docket: No. 41A04-8911-CR-530

Court: Indiana Court of Appeals; June 20, 1991; Indiana; State Appellate Court

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Areadio Alarcon, a licensed physician, was convicted on 34 counts of Dealing in a Schedule IV Controlled Substance, receiving a 12-year sentence with 8 years suspended and 10 years probation. The court addressed whether Ind.Code. 35-48-4-8(a)(1) applies to physicians writing prescriptions. The investigation revealed Alarcon issued prescriptions for controlled substances, including Diazepam and Temazepam, often without proper examinations or questioning. He occasionally wrote prescriptions in the name of others and issued post-dated prescriptions, while also selling items like watches to the same individuals. Alarcon argued that the statute did not apply to him as a physician, referencing Indiana laws that allow registered practitioners to dispense controlled substances. However, the court affirmed the statute's applicability, noting that this interpretation aligns with jurisdictions that hold that dealing statutes can apply to physicians who write prescriptions. The case represents a novel interpretation in Indiana law regarding the responsibilities of licensed physicians in prescribing controlled substances.

Alarcon asserts that a licensed physician dispensing controlled substances through prescriptions within the scope of their registration has an absolute defense against charges of Dealing in a Controlled Substance. However, the United States Supreme Court in *Moore* rejected a similar defense, clarifying that only lawful acts of registrants are exempt from prosecution under federal law. The Court emphasized that statutory authorization for certain activities does not equate to blanket immunity for all actions by those persons. Similarly, the New Mexico Court of Appeals in *Carr* determined that when a physician writes prescriptions not for legitimate medical purposes or outside the usual course of professional practice, such actions constitute drug distribution and are not authorized under the Controlled Substances Act (C.S.A.).

In Alarcon's case, evidence indicated he wrote prescriptions with minimal medical examination and issued post-dated or unsolicited prescriptions, leading the jury to conclude that these actions lacked legitimate purpose or did not occur in the usual course of his practice. Alarcon also references *Tobias v. State*, where a pharmacist's conviction for Dealing Narcotic Drugs was upheld despite his registered status, as the court found no prohibition against prosecuting him under the dealing statute. The court noted that a pharmacist could have an absolute defense if he dispensed controlled substances in accordance with his registration and valid prescriptions, which was not the case in *Tobias*.

Alarcon argues his convictions were erroneous due to an alleged absolute defense based on his status as a licensed physician. However, the court concludes that while *Tobias* could support the notion that writing a valid prescription is a defense, the use of "valid" implies that the prescriptions must be lawful. The record indicates that Alarcon was not writing valid prescriptions, thereby undermining his defense.

A prescription holds no legal validity unless it meets specific requirements: it must be issued for a legitimate medical purpose, in a reasonable quantity, by a practitioner operating within the scope of their professional practice, as outlined in Indiana law (856 Ind. Administrative Code 2-6-8(a) and Ind. Code 16-6-8-8.5(a)). Dispensing controlled substances is restricted to lawful prescriptions under the Indiana Controlled Substances Act (C.S.A.), making it clear that statutory authorization for dispensing is contingent upon lawful prescriptions. Alarcon cannot claim an 'absolute defense' against charges of dealing in controlled substances due to issuing prescriptions without legitimate purposes, which is prosecutable under Ind. Code 35-48-4-8.

Alarcon argues that he should be judged under the Legend Drug Act, not the C.S.A., claiming the latter targets 'street traffickers.' However, it is illegal for a practitioner to knowingly issue an invalid prescription (Ind. Code 16-6-8-1L), and he is actually subject to prosecution under the C.S.A. The precedent set in Copeland v. State (1982) is relevant, as it established that where conduct violates multiple statutes, prosecutors have discretion on which charges to pursue. The court determined that despite potential charges under the Legend Drug Act, the prosecutor appropriately charged Alarcon under the C.S.A. for his actions, equating them to those of illegal drug dealers. The judgment against Alarcon was affirmed, with references made to the dealing statute in the C.S.A. and its alignment with federal law.