WPIC 55.05 Legend Drug—Definition

Insert the name of the appropriate legend drug. Use this instruction in every legend drug case, except as noted in the Comment below.

Whether or not a substance is a legend drug is a matter of law for the court to decide. For the applicable definitions of “drug” and “legend drug,” see RCW 69.41.010.

When the drug involved in a case is available in either prescription or nonprescription form, it is error to simply instruct the jury pursuant to WPIC 55.05 that the drug is a legend drug. In this situation, the State must prove that the drug possessed by the defendant was not one of the forms available without a prescription, and the jury must be instructed accordingly. State v. Keating, 30 Wn.App. 829, 638 P.2d 624 (1981) (dealing with ephedrine).

In Keating, the court only held that it was error to use WPIC 55.05 under the circumstances of the case. The court did not state how the jury should have been instructed.