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1962 Ford Thunderbird v. Narcotic Control

APRIL 13, 1964.

1962 FORD THUNDERBIRD, SERIAL #2Y87Z155562, CLARENCE TRAPP, ET AL., PLAINTIFFS-APPELLEES,

v.

THE DIVISION OF NARCOTIC CONTROL OF THE DEPARTMENT OF PUBLIC SAFETY OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

The trial court, in an administrative review, set aside an order of the Division of Narcotic Control of the Department of Public Safety forfeiting as contraband a 1962 Ford Thunderbird automobile. The Division found as a matter of fact, and ruled as a matter of law, that the automobile was used in the unlawful transportation of narcotics, and that the owners of the automobile knew or should have known that it was being so unlawfully used. The Division appeals from the court's decision.

The Superintendent of the Division, who is authorized by statute to hold the hearing (Ill Rev Stats 1963, c 38, § 22-29a), found that on December 12, 1962 the motor vehicle was stopped at about 8:00 p.m. in Chicago, Illinois and the occupants were Patricia Trapp and Robert Stancey. The occupants were arrested by virtue of warrants previously issued. Six vials of Dolophine Hydrochloride were found in the purse of Patricia. She testified that the narcotics in her purse were purchased on prescription. She further stated that she obtained the prescriptions from her husband and that she had been getting prescriptions for Dolophine from a Dr. Jerry B. Neason for approximately two and one-half years. She admitted having prescriptions filled at the Balter pharmacy and that the prescriptions were signed by the doctor prior to his death. Dr. Neason prescribed the same narcotic for her husband. The last time he wrote a prescription for her was about five days previous to his death. At that time he gave her four or five prescriptions. She identified the signature of Dr. Neason on several prescriptions, one in particular dated December 11, 1962, which was several days after the death of the doctor. She further stated that at times the doctor would write nine or ten prescriptions for her husband and herself at one time and post-date them.

Clarence Trapp, husband of Patricia, testified that he was using two or three bottles of Dolophine a day, and that his wife was using substantially the same quantity and that he had been treated by Dr. Neason for approximately five years prior to the doctor's death. He further testified that he last saw the doctor on November 30, 1962 and that the doctor died on December 3, 1962. Clarence identified the signature of the doctor on several prescription blanks and testified that the doctor gave him about twenty prescriptions the last time he saw him alive. The evidence on the hearing conclusively showed that the owners of the motor vehicle knew of the doctor's death and still continued purchasing narcotics thereafter.

The Division found that the motor vehicle was used for the unlawful transportation of a narcotic drug and that the owners had knowledge, or should have had knowledge, that the prescriptions previously signed by the deceased doctor were not valid prescriptions after death. The order of the Division was that the interest of the owners, Clarence and Patricia Trapp, in the motor vehicle, and the motor vehicle be forfeited to the State of Illinois. In the order the Division states that to follow any other reasoning but that the death of the doctor voided these prescriptions, would mean that a doctor could write prescriptions that were to be filled for several years subsequent to his death without making an examination of the patient.

No appearance or brief was filed in this court by plaintiffs-appellees.

The Division argues that the prescriptions would be illegal even if the doctor were still alive. They say reason, logic and common sense declare that the purchase of drugs on post-dated prescriptions clearly frustrates the intent of the Narcotics Act and that a prescription should be issued only upon an examination of the patient and a determination of his present need for the drug. The Division further contends that a prescription for narcotics expires upon the death of the prescriber.

The Uniform Narcotic Drug Act of 1957 (Ill Rev Stats 1963, c 38, §§ 22.1-22.49), makes it unlawful for any person to possess or have under his control any narcotic drug, except as authorized by the Act. Par 22-11 provides that:

"A physician may prescribe for narcotic drugs to his patient when the patient is suffering from a disease, ailment . . . other than for addiction. A physician shall prescribe . . . a narcotic drug only when, in good faith, he believes the disease, ailment . . . requires such treatment and only in such quantity and for such length of time as are reasonably necessary. . . ."

Par 22-18 provides:

"A pharmacist, in good faith, may sell and dispense narcotic drugs to any person upon a written prescription of a physician, dated and signed by the person prescribing on the date when issued . . ."

Rule 5 of the Rules and Regulations adopted by the Division pursuant to the Uniform Narcotic Drug Act, is as follows:

"All prescriptions for narcotic drugs . . . shall be signed and dated by the practitioner . . . as of the day on which it was issued."

Par 22.26 authorizes the confiscation and forfeiture of a vehicle if any narcotic drug is unlawfully ...


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