The attorney for a Kaua'i physician charged with illegally prescribing controlled pain-killing medication without conducting physical examinations said yesterday that his client is being prosecuted not on the letter of the law, but on the government's reading of the law.

Attorney Michael Green said Dr. Harold C. Spear III of Hanapepe did not violate the law — specifically Title 21, United States code, sections 841 (a) (1) and (b) (1) (C) — because "there is no criminal statute that defines what constitutes legitimate medical purpose."

There is no definition that says Spear could not prescribe drugs after conducting examinations by telephone, Green said.

"The criminal complaint (against Spear) doesn't say what facts constitute the crime," Green said. "It's a perception. (Federal prosecutors) are saying he's doing it for the money ... but (Dr. Spear) has been trying to manage pain for his patient for over 20 years."

Spear was arrested last Friday at his Hanapepe clinic. U.S. Attorney for Hawai'i Ed Kubo said Spear was prescribing large amounts of highly addictive drugs simply to make money.

Kubo said undercover agents in California placed telephone orders of 120 Spradling Hydro-Guaifenesin (a cough suppressant) and also Viagra with Spear. They were charged $175 for an "office visit" and that the prescription was placed through Suntree Pharmacy in Melbourne, Fla.

The "dial-a-doc" business operated by Spear conducted telephone consultations and prescribed controlled substances to people without the benefit of face-to-face medical examination, Kubo said.

The investigation also found Spear issued a prescription for nearly 2,000 milligrams of Oxycontin and 600 milligrams of Methadone to a patient in April 2005 without the benefit of a medical examination, Kubo said.

Authorities also determined Spear allowed assistants with no medical training or education to complete pre-signed blank prescriptions to refill orders for customers, Kubo said.

Spear is free on a $50,000 signature bond, but to gain his release the doctor gave up his license to prescribe drugs, Green said. Spear's next court appearnce is June 25 but Green said he expects his client will be indicted before then.

Green said the trial verdict will basically boil down to the testimony of experts presented by both sides and who the jury believes. At stake is a maximum 20-year prison sentence.

Spear made his initial court appearance Monday before federal Magistrate Leslie Kobayashi in Honolulu.

He is being held at the Federal Detention Center near Honolulu International Airport.

Reach Rod Ohira at rohira@honoluluadvertiser.com.