Supreme Judicial Court (May 12, 2010)

A physician who issues an invalid prescription to a person seeking a controlled substance for illicit purposes has unlawfully "distributed" rather than "dispensed" the substance.

The defendant was convicted on multiple charges of illegally distributing or dispensing controlled substances in violation of c. 94C, §§32A(a) and 32B(a), among other charges. At trial, the Commonwealth elected to proceed on the theory that the defendant had unlawfully " dispensed" rather than " distributed" a controlled substance. The defendant appealed his convictions and the case was affirmed by the Appeals Court. The SJC granted the defendant's application for further appellate review. Although the SJC affirmed the convictions, the Court found for the first time that a physician who issues an invalid prescription to a person seeking a controlled substance for illicit purposes may only be convicted of unlawfully distributing the substance, not dispensing it.

Chapter 94C, §1 defines " dispense" as " to deliver . . . to an ultimate user . . . by a practitioner or pursuant to the order of a practitioner, including the prescribing . . . of a controlled substance." An " ultimate user" is one who " lawfully possesses a controlled substance for his own use or for the use of a member of his household." Thus in order to prosecute under this theory of dispensing, proof is required that delivery was made to an " ultimate user" or one who "lawfully possesses" the prescribed substance. Here, that was not the case. The facts were not disputed that the physician delivered a controlled substance by issuing a prescription to a patient seeking the substance for illicit ends. As the Court noted, "the physician has devolved into a 'pusher' . . . [p]ushers commit the crime of 'distribution.'" The SJC affirmed the convictions, however, holding that the jury properly considered only the elements necessary for the crime of unlawful distribution and therefore, the judgment was not substantially swayed by the error.