It is unlawful for any person to have in his possession or under his control any hypodermic device unless he has acquired possession of such device in accordance with the provisions of 454.480 to 454.530, inclusive.

Nev. Rev. Stat. Ann. §454.510.

Any person who has lawfully obtained a hypodermic device, as provided by 454.480 to 454.530, inclusive, and uses, permits or causes, directly or indirectly, such a device to be used for any purpose other than that for which it was purchased is guilty of a misdemeanor.

Nev. Rev. Stat. Ann. §454.520.

Any person who obtains possession of any hypodermic device by a fraudulent representation, a forged or fictitious name, or in violation of the provisions of 454.480 to 454.530, inclusive, is guilty of a gross misdemeanor.

Nev. Rev. Stat. Ann. §454.530.

Drug Paraphernalia Law

The Controlled Substances Act includes a drug paraphernalia provision, Nev. Rev. Stat. Ann. §453.554, based on the Justice Department's model act, reprinted in Annotation, Validity, under Federal Constitution, of So-called "Head Shop" Ordinances or Statutes, Prohibiting Manufacture and Sale of Drug Use Related Paraphernalia, 69 A.L.R. Fed. 15 (1984 & Supp. 1998). The statute provides a tri-partite definition of "drug paraphernalia." The first part states:

"Drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or designed for use in ... injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this chapter.

Nev. Rev. Stat. Ann. §453.554; see Conkey v. Reno, 885 F.Supp.1389 (1995).

The second part lists eleven types of items as examples of paraphernalia. Although the term "injecting" is included in the first part of the definition, the statute omits the model statute's reference in the list of examples to "[h]ypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injected controlled substances into the human body." Finally, the statute offers twelve factors to be considered when determining whether an item is drug paraphernalia. Nev. Rev. Stat. Ann. §453.556.

Nev. Rev. Stat. Ann. §453.560 sets out the substantive offense and the penalty:

a person who delivers or sells, possesses with the intent to deliver or sell, or manufactures with the intent to deliver or sell any drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this chapter is guilty of a category E felony and shall be punished as provided in NRS 193.130.⁽⁸⁾

See Conkey, 885 F.Supp.1389 (1995).

B. Analysis

The law on hypodermic syringes requires a prescription for dispensing or possessing a needle for purposes other than those specified in the statute, but does not specify any substantive standard for a prescription. The only explicit standard for judging the legality of a prescription is that of the Controlled Substances Act, which specifies that a prescription is written (1) for a legitimate medical purpose, and (2) in the usual course of professional practice. This standard is, however, consistent with and probably would be applied to a prescription challenged under the medical licensure law, which affords physicians considerable latitude for the exercise of professional discretion. A prescription for sterile injection equipment, issued to a patient who cannot or will not enter drug treatment, for the purpose of preventing the transmission of a serious communicable disease during injection, would seem to be well within the parameters of allowable discretion set by this standard.

Without case law to guide us, we assume the terms of the standard would be interpreted according to their common meaning. In determining whether a prescription arises within the usual course of professional practice, courts may consider such matters as whether a bona fide physician-patient relationship existed, whether other care was provided, whether proper records were kept of the encounter, whether the prescription was based on a proper history or individualized assessment of the patient's risk factors, efforts to provide other harm reducing services, follow up and so on. See generally United States v. Moore, 423 U.S. 122, 142-43, 96 S.Ct. 335,345 ("The evidence presented at trial was sufficient for the jury to find that respondent's conduct exceeded the bounds of "professional practice."... [H]e gave inadequate physical examinations or none at all. He ignored the results of the tests he did make.... He did not regulate the dosage at all, prescribing as much and as frequently as the patient demanded. He did not charge for medical services rendered, but graduated his fee according to the number of tablets desired. In practical effect, he acted as a large-scale "pusher" not as a physician.") A physician prescribing syringes to bona fide patients in his regular office or in a clinic, keeping records and providing other treatment services, would not be at risk of failing this prong of the test.

The term "legitimate medical purpose" is not defined in the statutes, regulations or case law. Looking to the medical practice act and the case law in other states, however, suggests that it would be a minimal standard. Licensure law sets very broad limits for treatment discretion, subjecting to discipline only physicians who are incompetent, continually fail to meet prevailing standards, Nev. Rev. Stat. Ann. §630.306, or treat patients "in a manner not recognized scientifically as being beneficial, " Nev. Admin. Code ch.630, § 185. In other states, courts have held that it is the burden of the prosecution to prove not simply that some physicians disagree with the practice at issue, but that "'no' responsible segment of the medical profession exists which accepts appellant's methods." Commonwealth v. Salameh, 421 Pa.Super. 320, 324, 617 A.2d 1314, 1316 (1992), appeal denied, 536 Pa. 641, 639 A.2d 26 (1994). They have recognized that "'(I)n making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options.' ... Hence, '(w)hat constitutes Bona fide medical practice must be determined upon consideration of evidence and attending circumstances.'" Commonwealth v, Possinger, 264 Pa.Super. 332, 339, 399 A.2d 1077, 1080 (citations omitted). There is ample support for the position that prescribing sterile injection equipment comports with treatment principles accepted by a responsible segment of the medical profession. See Zita Lazzarini, Ethical Issues in Prescribing and Dispensing Syringes to Injection Drug Users, and Josiah Rich, Syringe Prescription in Rhode Island: A Case Study.

Conclusion: A prescription for sterile injection equipment to an IDU patient is consistent with the standard for a valid prescription under chapter 630 and the prescription provision of the Controlled Substances Act.

We turn now to the second question: Do any other laws prohibit physicians from prescribing sterile injection equipment to IDU patients? There are three possibilities.

The hypodermic law requires a prescription for this use, since it is not one of the specified exceptions. But the statute requires only a prescription, and does not set any substantive limits on the physician's discretion to prescribe. By implication, then, it looks to the law governing physician's general authority to prescribe, and so is not violated by the writing of a prescription.

NAC. 453.430, the regulation provision stating that a "prescription may not be issued for dispensing any narcotic drug to a person dependent on a narcotic drug for the purpose of continuing his dependence upon the drug" could be the basis of an argument that providing sterile injection equipment must also be illegal. Per this argument, providing syringes enables drug users to violate the law, and is therefore inconsistent with its basic purposes.

This argument has a common-sense appeal, but should fail on the basic ground that the plain language of the prohibition does not embrace syringes. While the legislature has and the Board may have the power to define providing sterile injection equipment to known IDUs as a unprofessional conduct, they have not done so.

The drug paraphernalia law is the most serious possibility. Although we conclude later in this Memo that prescription of syringes is governed by the specific prescription provision of Nev. Rev. Stat. Ann. §454 and not by the more general drug paraphernalia law, for purposes of this analysis, we will assume that syringes are drug paraphernalia.

The drug paraphernalia law prohibits the sale or delivery of paraphernalia. Nev. Rev. Stat. Ann. §453.560; see Conkey, 885 F.Supp.1389 (1995).Delivery is defined as "the actual, constructive, or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship." Nev. Rev. Stat. Ann. §453.051. A physician who writes a prescription for an item is not actually transferring possession of that item to the patient, but merely providing the patient with instructions and authorization for the pharmacist who will transfer possession by dispensing the prescription.

Nor does the concept of a constructive delivery embrace the writing of a prescription. Constructive delivery normally requires "(1) actual or constructive possession [of the syringe] prior to transfer; (2) intent to aid in accomplishment of transfer; and (3) act of substantial step toward accomplishing transfer." Commonwealth v. Zimmerman, 3 D & C. 4ths 381, 385-85 (Common Pleas Lebanon Cty 1989); cf. Goldsworthy v. Johnson, 204 P. 505, 510 (1922) (constructive delivery entails "delivery of the means of obtaining possession."); Wilson v. Hill, 30 P. 1076, 1078 (1888)("where the delivery is not actual, 'there must be such a delivery and change of possession as the nature of the property is capable of.' Haynes v. Hunsicker, 26 Pa. St. 60. And 'the parties must leave nothing unperformed, within the compass of their power, to secure third persons from the consequences of the apparent ownership of the vendor.'") Whatever his intent, a physician writing a prescription to be filled at a pharmacy does not have actual or constructive possession of the syringe: "A defendant has constructive possession of a controlled substance 'only if he maintains control or a right to control the contraband.' " Sheriff v. Steward, 109 Nev. 831, 835-36, 858 P.2d 48, 51 (1993) (quoting Glispey v. Sheriff, 89 Nev. 221, 223, 510 P.2d 623, 624 (1973)). The authority to write a prescription for a syringe does not give the physician the ability to exercise dominion or control over it; like the patient, he would have to go to the pharmacy and purchase the syringe in order to possess it, and so cannot be said to constructively possess it.⁽⁹⁾

Conclusion: Writing a prescription for a syringe does not violate any Nevada law. A physician may therefore legally prescribe injection equipment to an IDU patient.

II. May a Pharmacist Legally Fill a Such a Prescription?

A. The Regulatory Environment

Pharmacy Licensure Law

The practice of pharmacy in Nevada is governed by chapter 639 of title 54 of the Nevada Code, with regulations found in chapter 639 of the Nevada Administrative Code. The statute vests in the State Board of Pharmacy power to adopt such regulations as are necessary for public safety and to carry out its regulatory duties. Nev. Rev. Stat. Ann. §639.070; accord Nev. Admin. Code ch. 639, §070.

The disciplinary provisions of the pharmacy law authorize action against the license of a pharmacist who is found to have been guilty "of violat[ing] any law or regulation . . . related to controlled substances, dangerous drugs [or] drug samples," "of a felony or other crime involving moral turpitude," or of "unprofessional conduct or conduct contrary to the public interest." Nev. Rev. Stat. Ann. §639.210(4), (6)-(7). The board of pharmacy has defined additional conduct as unprofessional:

(d) Failing strictly to follow the instructions of the person writing, making or ordering a prescription as to its filling or refilling, the content of the label or giving a copy of the prescription to any person except as permitted by law.

...

(g) Supplying or diverting drugs, biologicals, medicines, substances or devices which are legally sold in pharmacies, so that unqualified persons can circumvent any law pertaining to the legal sale of such articles.

(h) Performing or in any way being a party to any fraudulent or deceitful practice or transaction.

Nev. Admin. Code ch. 639, §945.⁽¹⁰⁾

Like the Medical Board, the Board of Pharmacy has the authority to punish licensees for unprofessional conduct not enumerated specifically in the law, but only if the conduct in question can be shown by competent testimony to be regarded by the profession as a whole as clearly improper. "The fact that the respected members of the board felt [a pharmacist's] conduct improper is not enough to provide their hearing with requisite due process." State Bd. of Pharmacy v. Garrigus, 88 Nev. 277, 279, 496 P.2d 748, 749 (1972).

A pharmacist is authorized to dispense medications ordered by a valid prescription, and is ordinarily expected to do so in the absence of a good reason to refuse. See Nev. Admin. Code ch. 639, §945; State Bd. of Pharmacy v. Garrigus, 88 Nev. 277, 279, 496 P.2d 748, 749 (1972) ("The profession of medicine calls for different requisites than the profession of pharmacy and it is not for the pharmacist to second guess a licensed physician unless in such circumstances that would be obviously fatal."); Strauss S. The Pharmacist and the Law. Baltimore MD: Williams & Wilkins, 1980:29-31; Steven W. Huang, The Omnibus Reconciliation Act of 1990: Redefining Pharmacists' Legal Responsibilities, XXIV Am. J. L & Med. 417 (1998).

Controlled Substance, Syringe Prescription and Drug Paraphernalia Laws

The controlled substances, syringe prescription and paraphernalia discussed in I.A. above are also applicable to pharmacists. The Controlled Substances Act imposes specific duties on the pharmacist:

1. A pharmacist shall not knowingly fill or refill any prescription for a controlled substance for use by a person other than the person for whom the prescription was originally issued.

2. A person shall not furnish a false name or address while attempting to obtain a controlled substance or a prescription for a controlled substance. A person prescribing, administering or dispensing a controlled substance may request proper identification from a person requesting controlled substances.

3. A pharmacist shall not fill a prescription for a controlled substance if the prescription shows evidence of alteration, erasure or addition, unless he obtains approval of the practitioner who issued the prescription.

Nev. Rev. Stat. Ann. §453.431.

B. Analysis

We have concluded above that a physician's prescription for sterile injection equipment, written under the factual conditions assumed for purposes of this Memorandum, is valid under Nevada law. The hypodermic prescription law in the Poisons, Dangerous Drugs and Hypodermics chapter does not set any additional substantive standards for a hypodermic prescription, but rather simply requires a prescription as a condition of sale. Ordinarily, the pharmacist is required to fill a valid prescription.⁽¹¹⁾ The next question is whether filling the prescription would be prohibited under any other provision of law.

Here the issue is, again, the paraphernalia law. The pharmacist is undoubtedly transferring the syringe, so if a syringe is drug paraphernalia in this situation, then the transfer is illegal. We thus come to the fundamental question of whether a syringe dispensed by a valid prescription, for legitimate medical reasons, falls within the definition of "drug paraphernalia" under Nevada law. We conclude that it does not.⁽¹²⁾

This conclusion rests on the terms of Nev. Rev. Stat. Ann. § 454.480, which regulates the sale of needles in Nevada, and authorizes their sale upon the prescription of a physician. This statute, not the paraphernalia law, governs this question.

In Nevada, "[t]he canons of statutory construction direct us to follow the intent of the legislature." McKay v. Board of Supervisors of Carson City, 102 Nev. 644, 650, 730 P.2d 438, 443 (1986). A faithful effort to determine legislative intent should be guided by both the language of the statute and the expressed purposes of the lawmakers who wrote it. The plain text of the paraphernalia and hypodermic statutes evinces and accomplishes the intent to regulate syringes separately from other items that can be used with illicit drugs, and not to include such syringes as drug paraphernalia.

The hypodermic chapter, passed in substantially its present form in 1967, sets out a complete scheme for regulating syringes. It states a prescription requirement for any sale or possession of needles except for specifically enumerated used, Nev. Rev. Stat. Ann. §454.480, § 454.510. It prohibits the obtaining of syringes through a false prescription, or their use for purposes other than those for which it was lawfully obtained. Id. §§ 454.520, 454.530.

In 1981, as part of a national wave of legislation, the legislature passed the paraphernalia law. Like other legislation of the time, the Nevada paraphernalia law was aimed at head shops (retail businesses devoted to serving users of illegal drugs). See generally Lawrence O. Gostin, Zita Lazzarini, Prevention of HIV/AIDS Among Injection Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention, 46 Emory L J 587 (1997) (describing origins of drug paraphernalia statutes). It was based on a federal model, see Annotation, Validity, under Federal Constitution, of So-called "Head Shop" Ordinances or Statutes, Prohibiting Manufacture and Sale of Drug Use Related Paraphernalia, 69 A.L.R. Fed. 15 (1984 & Supp. 1998), and the legislature changed the model law's definition of drug paraphernalia in only one significant respects: it removed any reference to hypodermics needles and syringes from the illustrative list of items that could be drug paraphernalia.⁽¹³⁾ Given the broad definition of the statute, this does not foreclose it being interpreted to include needles, but given the lack of concern about needles as paraphernalia at the time, and the uniqueness of this departure from the model, it must be taken as nearly incontrovertible evidence that the legislature was not trying to change the regulatory system for needles that had been in place for at least 14 years. See McKay, 102 Nev. 650, 730 P.2d 442 (it is ordinarily presumed that the legislature, by deleting an express portion of a law, intended a substantial change in the law).

The two statutes are readily harmonized by reading the paraphernalia law to cover all paraphernalia except hypodermics, which are governed by the separate and earlier prescription law. A conflict only arises if the plain text and legislative history of the two statutes is set aside, but even if we assume that the definition of paraphernalia in the paraphernalia act includes syringes, the hypodermic act should control where conduct it authorizes is deemed illegal under the paraphernalia law.

It is a basic canon of statutory construction that where two statutes seem to cover the same behavior in ways that produce conflicting results, the more specific law will control. SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987)(" a specific statute takes precedence over a general statute.") In Nevada, the hypodermics chapter specifically deals with syringes prescribed and dispensed by health care professionals. The drug paraphernalia act is far broader, and includes any person, transferring virtually any instrumentality, with no consideration of medical purposes. There is an obvious conflict between the two provisions on the issue presented in this memo: the prescription provision gives the physician discretion to prescribe for the legitimate medical purpose of preventing disease in an IDU, allows the pharmacist to fill the prescription, and the patient to possess the needle. The paraphernalia law would prohibit sale or possession. There are, however, other conflicts. Take, for example, the case of an insulin-dependent diabetic who also uses injects illegal drugs. Under the prescription law, it is not a crime for the pharmacist to sell syringes to the diabetic IDU, even if he knows they may used for an illegal purpose in addition to the legal one. The legislature put the onus on the user, whose use of the legally obtained syringe for an illegal purpose is the crime. By contrast, the paraphernalia law would seem to make the pharmacist a criminal in that situation, since it makes no allowance for dual use.

Finally, the rule of lenity also supports the view that the paraphernalia law does not apply. "Where the legislative intent of a criminal statute is ambiguous, the statute must be strictly construed against imposition of a penalty for which it does not provide clear notice." Carter v. State, 98 Nev. 331, 334-335, 647 P.2d 374, 376. The rationale for the rule is the injustice of convicting a person without clear notice to him that his contemplated conduct is unlawful, as well as notice of the penalties. See generally Garrigus, 88 Nev. 277, 496 P.2d 748. Given the obvious ambiguity in the proper interpretation of the paraphernalia and prescription provisions, lenity requires a court to hold that a practitioner acting legally under the latter provision cannot be charged with violating the former.⁽¹⁴⁾

This interpretation is technically sound, reflects a supportable account of legislative intent, and gives effect to both provisions. Its main weakness is that it credits the legislature with a nuanced view of drug-abuse control that is in some contrast to the get-tough, "zero-tolerance" attitude that prevails today.

The statutes may also be harmonized by interpreting the paraphernalia provision as a general limitation on the prescription provision, so that read together the two create a regime in which a practitioner may prescribe or dispense a device such as a syringe in good faith, in the usual course of practice, and according to accepted professional standards, unless the practitioner knows or should know that the individual intends to use it for illegal drug use. This gives effect to both statutes, and has the advantage of effectuating a "zero tolerance" legislative intent.

It has the defects of its strengths. It side-steps basic rules of construction, and ignores what evidence there is of legislative intent. The interpretation leads to some strange results, as in the case of the insulin-dependent patient who is also an IDU. Despite its flaws, however, the argument remains formidable: we cannot count on judges' having the rigor or inclination to make a technically sound analysis leading to a result that goes counter to their intuitions.

Conclusion: Dispensing sterile injection equipment to known IDUs probably does not violate Nevada law.

III. How Might Nevada Law Be Changed or Clarified to Promote Access to Sterile Injection Equipment for IDUs Through the Health Care System?

This Memorandum has concluded that physicians may prescribe and pharmacists may dispense sterile injection equipment to IDUS as a health-care intervention to prevent the transmission of blood-borne pathogens. Nevertheless, several legal measures would add clarity to the legal situation or otherwise protect public health by enhancing access to safe injection equipment.

A. Changes in Statutes or Regulations

1. The General Assembly should amend the Controlled Substances and "Poisons; Dangerous Drugs and Hypodermics acts to legalize the over-the-counter sale of injection equipment under all circumstances.

2. The Medical and Pharmacy Boards have the power to and should issue regulations explicitly stating that providing sterile injection equipment to IDU patients in order to prevent transmission of a serious communicable disease is an acceptable medical practice. Nev. Rev. Stat. Ann. §630.130(2); Nev. Rev. Stat. Ann. §639.070(1).

3. The Medical and Pharmacy Boards should require training in the theory and practice of harm reduction as part of mandated continuing education. Nev. Rev. Stat. Ann. §630.253(2); Nev. Rev. Stat. Ann. §639.2171.

B. Declaratory Judgment

A practitioner wishing to prescribe or dispense injection equipment could also consider bringing an action for a declaratory judgment. Nev. Rev. Stat. Ann. §30.010. The requirements for declaratory relief are as follows: (1) There must exist a justiciable controversy, that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination. Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948); Nevada Mgt. Co. v. Jack, 75 Nev. 232, 338 P.2d 71 (1959). A declaratory judgment would thus probably be available to test the legality of prescribing and dispensing syringes to IUDs, at least if there was an indication that law enforcement officials believed the practices to be illegal, and had some intention of prosecuting a physician or pharmacist.

C. Attorney General's Opinion

State agencies, but not individual citizens, can request an opinion of the attorney general on the proper interpretation of a statute. Nev. Rev. Stat. Ann. §228.150.

2. Peter Lurie, T. Stephen Jones & J. Foley J, A Sterile Syringe for Every Drug User Injection: How Many Injections Take Place Annually, and How Might Pharmacists Contribute to Syringe Distribution? 18 J Acquir. Immune Defic. Syndr. S45 (Supp. 1, 1998).

4. Osteopathic physicians are governed under a separate chapter, Nev. Rev. Stat. Ann. §633.011 et seq.. As these are substantially similar to the rules governing allopaths, the osteopathic rules will not be further discussed.

10. The Board of Pharmacy is authorized by statute to promulgate regulations setting out basic standards of pharmacy practice, Nev. Rev. Stat. Ann. §639.215, but apparently has never done so.

11. A pharmacist presumably could refuse to fill a syringe prescription under Nev. Rev. Stat. Ann. §453.431 if he believed that the prescription was unlawful.

12. Whether something is drug paraphernalia depends, in narrowest terms, upon whether the seller knows or has reason to know that it will be used for illegal drug use. Nev. Rev. Stat. Ann. §453.560. In all cases in which the pharmacist does not in fact know or have reason to know that the patient intends to use the syringe to inject illegal drugs, the pharmacist would not violate the paraphernalia law even if it applied.

13. The legislature also removed the word 'processing' from the definition, and de-emphasized 'carburetion' devices.