Can you imagine being arrested for possessing a felony drug for which you had a valid prescription? Well, it happens. We won't explore why such arrests happen, as that would launch me into a rant bashing law enforcement for another 1500 words. I'll spare you, for now. The good news is, that there is a defense to possessing legally prescribed pills, its commonly referred to as the "prescription defense".
Florida Statutes section 499.03(1), Florida Statutes (2004), and section 893.13(6) each provide a “prescription defense” to a drug possession arrest. I don't want to get bogged down in statute numbers here, but indulge me for a few more sentences. Section 499.03 is part of the chapter addressing Drug, Cosmetic, and Household Products. It states that the possession of a drug is illegal, unless you have a legit prescription . § 499.03(1) (emphasis supplied). Seems simple enough, right? Note that it does NOT say you must keep your prescription in its original bottle (otherwise, how could they sell pill organizers labeled MON TUES WEDS THURS FRI SAT SUN? My mom swears by these organizers).
Section 893.13(6) is the criminal statute that prohibits and penalizes simple drug possession, it states that:
It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a pharmacist or doctor (etc)....§ 893.13(6)(a) (emphasis supplied).
Recently, Florida courts have recognized that someone other than the patient can actually possess pills without being in violation of any law. The good news is that the prescription defense extends to agents of the prescription holder. That means Mom, Dad, wife, etc. can possess your pills without getting in trouble (theoretically, of course). I wrote an article regarding a recent trafficking case overturned in which the boyfriend was holding a trafficking amount of pain pills for his girlfriend (her dress did not have pockets accommodating a pill bottle, so that means we men must utilize various jean pockets), read more by clicking on "Another Trafficking in Pill Case Overturned".Who may use the Prescription Defense? Anyone
The fact is, the prescription defense is available to everyone, not just the person who was written the prescription. Florida case law states that "any individual authorized by the prescription holder to hold the medications on his or her behalf" has not committed a crime. McCoy v. State, 56 So. 3d 37 (Fla. 1st DCA 2010).
But the law goes much further than that. You see, Florida law does not require "express authority" to hold pills on behalf of another person. No written agreement necessary to hold the pills. No verbal agreement necessary to hold the pills. The legal authority to hold pills for another person may be "implied", with one Florida Court recently holding that "express authority is not required to create a valid agency relationship; rather, the prescription holder may provide his or her agent with implied authority to act, or in this case hold the pills." Ramirez v. State, 2013 Fla. App. LEXIS 569 (Fla. 4th DCA 2013).
In the Ramirez case, his mother's pills were left at his house in the living room (where guests often visit), so Ramirez took it upon himself to move the pills to his bedroom. As a stroke of dumb luck, the police searched the home regarding another matter and found the pills in Ramirez's bedroom. Fortunately, his conviction for trafficking in hydrocodone was overturned because--even though Mom testified that she didn't know how the pills got to her son's bedroom--the appeals court found that Ramirez had his mother's implied consent to move the pills out of harm's way. BOTTOM LINE: You do not need the prescription holder's consent because "implied authority may be inferred from the facts and circumstances surrounding the parties' relationship. Ramirez at 10.A Motion to Dismiss can get a Prescription Drug Case Thrown out of Court
The Prescription Defense has turned out to be effective even on Motions to Dismiss, as was the case in State of Florida v. Latona, 75 So. 3d 394 (Fla. 5th DCA 2011), where our appeals court upheld the dismissal of Latona's oxycodone charges based upon this defense. For a more detailed account of how Lantona used the prescription defense in her oxycodone case, see my blog "Dismissal of Oxycodone Case with the Prescription Defense".
Yes, it should be obvious that for those with a prescription for a controlled substance, why would you even be arrested? Well, a common fact scenario is where someone simply brings one or two pills in their pocket or purse, rather than the whole bottle. When searched by law enforcement, the officers typically don't allow you to run home and show proof that you actually have a prescription. You're in jail. Your mugshot is all over the internet, and you've got a felony drug arrest on your criminal history. Really, law enforcement should be ashamed of themselves for not investigating claims of legal prescription ownership more closely. It is a disgrace to the Constitution that citizens who are 'innocent until proven guilty' would be subject to arrest for not carrying their pills in a pill bottle. After all, prescription pills are perfectly legal substances to possess (unlike, say, powder cocaine).Problems Regarding Evidence Admissibility in Prescription Defense Cases
Now, this section may seem like a little bit of "Inside Baseball", but for those of you interested in every detail you can get your hands on (without, of course, having to hire me), then here's some more free stuff. In the case of Romanyuk v. State, a jury conviction led to a 30 month prison sentence on a possession of oxycodone. 141 So. 3d 749 (Fla. 2d DCA 2014) The woman convicted was simply holding her husband's medication. The sad part is, when she went to trial and testified, she tried to introduce her husband's prescription records printout from the pharmacy. After all, if she's the one picking up these pills from the pharmacy, why couldn't she introduce the paperwork received in exchange? These days, you get a receipt for buying a donut. Paperwork is everywhere. But, the judge wouldn't allow her to introduce the pharmacy records without bringing someone in from the pharmacy. And, there's more bad news. This case is an example of How Not to Be a Judge, as everything this judge did was shot down by the appellate court. I'm just saying. For example, Romanyuk wanted to testify as to her husband's valid prescription for the oxycodone, but the judge wouldn't allow the testimony. To add insult to injury, the judge refused to allow the defense to present a "prescription defense" jury instruction. Needless to say, this judge was overturned on appeal, and the case was eventually dropped. That being said, how sad is it that an appeals court had to step in and correct this injustice? If you're interested in this case, check out my article creatively entitled "Possession of Oxycodone Gets Overturned Based Upon the Prescription Defense".
To help defend such charges, make sure you visit all the pharmacies at which you have filled this particular prescription med. Have your attorney obtain sworn business records affidavits to support the prescription records (to explain this would be another episode of Inside Baseball).Prescription Defense for Out-of-State Medications?
Another problem that's creeping into Florida courts are the current inconsistencies with what various states define as a "prescription drug". Some drugs are perfectly legal prescription medications in some states, but not in Florida. For example, California (and many other states), have made marijuana a prescription medicine. Is that prescription valid in Florida? For more details on this issue, check out my article "Tell Grandma to Leave Her Prescriptions at Home When Visiting Orlando".
Believe it or not, medical marijuana is perfectly legal in Florida, effective January 1, 2015. The problem is that no one seems to be qualified to grow the medicinal weed. The law can be found in Florida Statute 381.986, entitled, the "Compassionate use of low-THC cannabis".
As always, call me, so that we can discuss your possession and/or trafficking case. It's a free consultation, and it's definitely worth more than you're going to pay for the call!