WPIC 55.06 Possession, Sale, or Delivery of a Legend Drug Upon Order or Prescription

Use this instruction with WPIC 55.02 (Possession of Legend Drugs—Elements) or WPIC 55.04 (Sale or Delivery of Legend Drugs—Elements), when applicable.

Use bracketed material as applicable. See the Comment for further discussion of the medical practitioners covered by the statute and the burden of proof.

There are many specific authorized uses of legend drugs set forth in RCW Chapter 69.41. If one of these uses is asserted, appropriate instructions for the case will have to be drafted from RCW Chapter 69.41 which defines what is and what is not authorized by law.

This instruction has been modified to comport with the Laws of 2021, Chapter 311, §§ 11–12. RCW 69.41.030; Laws of 2021, Chapter 311, §§ 11–12 (effective May 13, 2021).

Burden of proof. The Washington Supreme Court has held that the State has the burden of proving the absence of a prescription beyond a reasonable doubt. See State v. Clausing, 147 Wn.2d 620, 627, 56 P.3d 550 (2002).

Comparison with burden of proof under VUCSA statute. The discussion relating to the similar exception for controlled substances in the Comment to WPIC 52.02 (Controlled Substance Obtained Directly From a Practitioner or Pursuant to a Valid Prescription) is generally not applicable to the exception for legend drugs. The Controlled Substances statute contains a specific provision that places the burden of proving “lawful” possession on the defendant. See RCW 69.50.506(a). The legend drug statute does not include a similar provision.

Practitioners. In some cases, the pattern instruction may need to be more specific as to who is authorized to provide a prescription or order. For example, the instruction refers to a “physician,” while the statute specifies a “physician under chapter 18.71 RCW.” If there is an issue as to whether the person qualifies as a physician under RCW Chapter 18.71, then further instructions based on that chapter's requirements will be needed.

The blank line is included in the instruction because the instruction's list of bracketed practitioners is not all-inclusive. Registered nurses, advanced registered nurse practitioners, osteopathic physician assistants, and physician assistants are covered by RCW 69.41.030, but only if they are specially authorized by their governing professional board or commission. RCW 69.41.030(1). The statute also covers certain practitioners in the armed forces, public health service, or the Veterans Administration, as well as certain health professionals from other jurisdictions. See RCW 69.41.030(1).

Revising the pattern instruction. If the instruction is being made more specific to fit the circumstances of a particular case, care should be taken to make sure the instruction accurately states the law, does not include superfluous provisions, and clearly communicates to jurors that the critical issue is whether a prescription exists. See State v. Clausing, 147 Wn.2d 620, 627, 56 P.3d 550 (2002).

Related discussion. For a discussion on the burden of proof for defenses in general, see WPIC 14.00 (Defenses—Introduction).