Appellant Paul E. Raber was indicted for 33 counts of violating OCGA § 16-13-42 a 1 by unlawfully distributing or dispensing a controlled substance, in that he, being a licensed practitioner under the laws of this state, “did unlawfully issue a prescription document signed in blank in violation of OCGA § 16-13-41 . . . .” R. II, 4-14 This language is taken from the first sentence of OCGA § 16-13-41 h, which provides that “it shall be unlawful for any practitioner to issue any prescription document signed in blank.” The trial court denied a motion filed by Appellant to dismiss the indictment on constitutional due process grounds. He appeals pursuant to our grant of his application for interlocutory appeal. Appellant contends that OCGA § 16-13-41 h is unconstitutionally vague as applied in this case. Indeed, where, as here, First Amendment rights are not implicated, a vagueness challenge to a statute must be examined in the light of the facts of the case at hand, unless the statute is shown to be impermissibly vague in all of its applications. Santos v. State , 284 Ga. 514-515 1 668 SE2d 676 2008; Catoosa County v. R.N. Talley Properties , 282 Ga. 373, 374 651 SE2d 7 2007. “One whose own conduct may be constitutionally proscribed will not be heard to challenge a law because it may conceivably be applied unconstitutionally to others. Cits.” Hubbard v. State , 256 Ga. 637, 638 352 SE2d 383 1987. ” ‘A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.’ Cits.” Catoosa County v. R.N. Talley Properties , supra at 375.
Although the indictment here does not set forth factual allegations and the facts of this case have not been established by trial, the record and briefs provide allegations of fact which are put forth by the State in support of its indictment, are uncontested by Appellant, and are sufficient to permit a consideration of the vagueness challenge. Randolph v. State , 269 Ga. 147, 149 2 496 SE2d 258 1998; Hall v. State , 268 Ga. 89, fn. 2 485 SE2d 755 1997. The trial court accurately summarized the relevant factual allegations as follows: It is undisputed that the indictment in this case is the result of a pre-signed prescription pad that contained thirty-three separate forms found in a safe at the home of Appellant’s nurse practitioner. The State alleges that Appellant violated OCGA § 16-13-41 h when he signed these prescription forms in blank and provided them to his nurse practitioner. R. II, 59-60 Appellant argues that, because OCGA § 16-13-41 h does not define what a physician must do to “issue” a prescription document, he did not have fair notice that providing a pre-signed blank prescription pad to a member of his medical staff in the course of her employment would subject him to prosecution for a felony offense.
