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F 18.35 n1 THIS ENTRY HAS BEEN DELETED
F 18.35 n2 Illegal Drug Prescription (HS 11153): Instruction Package Available.
An instruction package is available to FORECITE subscribers with the various instructions relating to defense of a charge of issuing prescriptions for controlled substances without a legitimate medical purpose under HS 11153. Ask for Instruction Bank I-863.
Illegal Prescription Of Controlled Substance
Defendant is charged in Counts _____ of the information with the commission of the crime of violation of HS 11153. Pursuant to HS 11153, any person who knowingly issues a prescription for other than a legitimate medical purpose in the usual course of [his] [her] professional practice is guilty of a felony. A physician may prescribe controlled substances to [his] [her] patient when the patient is suffering from a disease, pathology, ailment or injury other than addiction to a controlled substance which [he] [she] in good faith believes requires treatment by a controlled substance. That is a legitimate medical purpose and justifies a prescription in such quantity and for such length of time as is reasonably necessary.
It is immaterial whether the physician is correct in [his] [her] diagnosis, improvident in [his] [her] administration of controlled substance, or varies from the practice of other physicians unless [he] [she] varies so much as to be unreasonable in quantity or length of time, or the evidence so convinces you, the jury, that [he] [she] did not act in good faith. The law with respect to HS 11153 does not require [him] [her] to be right. It requires [him] [her] to act in good faith in issuing the prescription and to issue it in reasonable amounts and for reasonable lengths of time.
In order to convict the defendant of any of the crimes charged against [him] [her], you must be convinced beyond a reasonable doubt that [he] [she] knowingly failed to comply with this standard.
You are further instructed that among the ways a doctor can violate this standard is the issuance of:
(1) An order purporting to be a prescription which is issued not in the usual course of professional treatment; or
(2) An order for an addict or habitual user of controlled substances which is issued not in the course of professional treatment or as part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances, sufficient to keep [him] [her] comfortable by maintaining customary use.
Included in this instruction was the term “good faith.”
Good faith means honesty of purpose, freedom of intention to defraud and faithfulness to one’s duty or obligation. It is the opposite of fraud and bad faith.
[Insert definition of addict from CJ 12.45.]
Points and Authorities
The substance of this instruction was approved in People v. Lonergan (90) 219 CA3d 82, 90 fn 2 [267 CR 887] and People v. Schade REV GTD/DISD/DEPUB (94) 25 CA4th 1605, 1636-39 [32 CR2d 59] reprinted for tracking pending review at 30 CA4th 1515. The word “knowingly” has been added to HS 11153(b) in accordance with Schade‘s conclusion that the instruction does not improperly allow conviction based upon negligence so long as the jury understands that the defendant must “knowingly … prescribe a controlled substance in a unreasonable quantity or length of time ….” [Original emphasis.] (Schade, 25 CA4th at 1639.)
The reference to the definition of addict in CJ 12.45 is based on Schade‘s determination that the term addict must be defined sua sponte. (Schade, 25 CA4th at 1635-36.)
The failure to define a technical term which is an element of the charge violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE PG X(C)(8).)