Summary
The Kentucky Supreme Court held that a licensed dentist with a DEA permit could be convicted under KRS 218A.1404 for prescribing controlled substances to non-patients for non-medical purposes in exchange for illicit drugs. The court concluded that the statute applied to licensed practitioners, that the indictment was facially valid, and that the trial court properly denied the motion to dismiss. The Court of Appeals’ decision was reversed, and the conviction and sentence were reinstated.
Topics
Practice areas
Questions Presented
- Whether KRS 218A.1404(3) applies to a licensed dentist who prescribes controlled substances to non-patients for non-medical reasons in exchange for illicit drugs.
- Whether the phrase "except as authorized by law" exempts licensed dentists from prosecution under KRS 218A.1404(3) merely because they possess a license and DEA permit.
- Whether the indictment was facially valid and sufficiently charged a felony under KRS 218A.1404.
- Whether the trial court had jurisdiction and properly denied Sears's motion to dismiss.
Holdings
- KRS 218A.1404(3) applies to licensed dentists and other licensed medical professionals; a dentist's license and DEA permit do not authorize prescriptions to non-patients for purposes unrelated to dental treatment or diagnosis, particularly when made for the prescriber's personal benefit.
- The felony penalty in KRS 218A.1404(4) governs a violation of subsection (3); KRS 218A.180 is a recordkeeping and prescription-format provision and does not displace the penalty specified in KRS 218A.1404.
- The indictment was facially valid, sufficiently stated the essential facts of the charged offenses, and invoked the trial court's jurisdiction; the trial court properly denied Sears's motion to dismiss.
Key quotations
“It is the holding of this Court that a licensed dentist with a required DEA permit does not have the lawful authority to prescribe controlled substances to non-patients for non-medical reasons in return for payment in the form of the illicit drugs.” (312)
“Accordingly, when a dentist writes a prescription for a purpose not related to dental treatment or diagnosis, the act of prescribing is not authorized by law.” (310)
Factual background
Sears was a licensed and practicing dentist with a DEA permit. The Commonwealth alleged that he prescribed Loracet, Oxycontin, and Lortab to non-patients without a legitimate medical purpose, in exchange for receiving some of the drugs for his own use. Because Sears entered a conditional guilty plea, the evidentiary record was limited to the allegations and proffer concerning the prescriptions.
Procedural history
Sears was indicted in six counts for illegally prescribing controlled substances under KRS 218A.1404(3). Before trial, he moved to dismiss for failure to state a charge and lack of jurisdiction; the trial court denied the motion. Sears then entered a conditional guilty plea to three counts and received a three-year sentence, with six months to serve and the remainder probated for three years. The Court of Appeals reversed, concluding that his dentist's license and DEA permit authorized the prescriptions and that the indictment did not charge a crime. The Supreme Court of Kentucky accepted discretionary review, reversed the Court of Appeals, and affirmed and reinstated the conviction and sentence.