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Prescription Drugs

Possession of a Controlled Substance

With big pharmaceutical companies cranking out more and more drugs so that American’s can continue their monthly payment plans to ‘Big Pharma’, expect to see more arrests for possession of these controlled substances. Central Florida has its share of cash-only pain clinics, and the undercover cars outside are just waiting to make another drug bust.

Drugs are a funny thing. The same drug may be legal--or illegal--depending upon two things: (1) is there a valid prescription for the drug, and (2) is the person possessing the drug somehow connected to that valid prescription?

Let's start with the basics. Florida Statutes Section 893.13(6) controls this issue, stating 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 practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.”

Burden of Proof

One common misconception about prescription drug arrests involves whether or not the prescription bottle must be used to store the pills. Citizens are not required to carry around prescription bottles, but by not doing so, they expose themselves to arrest by lazy police officers not interested in researching the validity of the prescription. Thus, it’s always a good idea to carry the bottle, as it provides “proof” that the prescription is valid. Just a head’s up.

Most taxpayer's would be shocked at how many arrests are out there based upon lazy law enforcement. Some cops would rather chalk up another drug arrest rather than verify a citizen's information regarding ownership of the medication. Remember, it's perfectly legal to carry around someone else's prescription. Most officers conveniently forget this fact, and forget that our Constitution labels We The People as "Innocent Until Proven Guilty". Some inexperienced officers would rather make an arrest now, and let the truth be sorted out later. That isn't what the Constitution calls for, as We citizens should be given the benefit of the doubt for substances that are perfectly legal to possess. I've written an article about a poor woman who received three years in prison for possessing her husband's medications, if you're interested, check out "Possession of Oxycodone Gets Overturned Based Upon Prescription Defense".

Is it Illegal to Possess an old Prescription?

Another issue in a prescription drug possession case involves the age of the prescription. When somebody calls and says “I was arrested for possession of a few Roxies”, I say “have you ever had a prescription for them?” A: “Yea, but that was years and years ago, they didn’t renew the script.” My response, “so what, the old prescription is still a defense to the new charges”.

A citizen is not required to dispose of an oxycodone pill prescribed ten years ago. Indeed, the expiration date of such a pill may have long past, but it is still legal to carry that old prescription (as mentioned above, try to have the bottle ready, if not, attempt to obtain the old pharmacy records. Big chains like Walgreens keep decent computerized records. As a last resort, attempt to get the records from your doctor).

Basically, there is no legal time limit on the possession of a prescription. My mom is a good example of this, she’s a prescription hoarder. If you look in my mom’s pantry, you’ll find so many pill bottles that she could open up her own pharmacy. The fact is, mom is not required to throw out her pills on any certain date—even though it may not be advisable, medically speaking, to ingest these old expired drugs. Many times, you hear from people who are arrested for the possession of a pain pill such as Roxicodone, Oxycontin, or hydrocodone. The arrest may stem from the possession of only a few pills which have been held on to in case their back pain flares up. As the years pass by, the prescription is not renewed by their doctor, yet several pills remain. The statute permits possession of a prescription drug so long as the pills were legally prescribed at some point. This is what is commonly referred to as the prescription defense--and it has no time limit.

Possession of a Prescription Drug is, Often, Perfectly Legal

Some drugs, just by looking at them, you can tell they are illegal. Cocaine, for example, is illegal in it's powder form. But prescription pills are not illegal at first sight. Even without a prescription, the possession of a prescription drug can often be perfectly legal. Sure, it’s legal for doctors, nurses, and pharmacists. But it’s also legal for the friends and family of the person who holds the prescription to possess it on their behalf.

Florida courts have held that one person may lawfully hold another’s prescription, and the real life example of this can be found in McCoy v. State, 56 So. 3d 37 (Fla. 1st DCA 2010), where defendant was charged with trafficking in hydrocodone when she was found with a prescription bottle containing Lorcet labeled for her husband. She claimed, and her husband corroborated, that she was holding the pills because he did not have a pocket in his work clothes. The McCoy court goes on to find that

“Pursuant to section 465.003(6), Florida Statutes (2008), pharmacies may lawfully dispense medications to a consumer or his or her agent. Further, a pharmacist may dispense a schedule III controlled substance ‘when the pharmacist or pharmacist’s agent has obtained satisfactory patient information from the patient or the patient’s agent.’ Sec. 893.04(2)(a), Fla. Stat. (2008). Thus, schedule III controlled substances may be ‘lawfully obtained’ by an agent of the prescription holder who can provide ‘satisfactory patient information.’ An agent is ‘[o]ne who is authorized to act for or in the place of another.’ Blacks Law Dictionary 68 (8th ed. 2004).”

Of course, the McCoy case involved a husband and wife, but Florida agency law has no requirement that ‘agents’ reside together. According to Florida law, the definition of an ‘agent’ for purposes of prescription drug possession is very broad, defined simply as ‘one who is authorized to act for or in the place of another’. That could be anyone, right? So long as the prescription holder testifies that the person charged was ‘authorized’ to possess the drug on their behalf, the charges can be beat with the prescription defense outlined in McCoy. I think back to how many times I’ve run up to the pharmacy to pick up meds for my mom or girlfriend. Without the law outlined above, I committed a felony possession of a controlled substance with each and every visit to Walgreens on behalf of my momma.

Some courts have ignored this agency relationship regarding the possession of prescription drugs, and found that the sharing of said pills may give the police “probable cause” to stop a vehicle and investigate. This circumstance is most common outside of Orlando’s cash-only pain clinics, or in the parking lots of Walgreens and CVS. In May v. State, 77 So.3d 831 (Fla. 4th DCA 2012), the court came to what I think is a wrong decision--as they ignored McCoy above--and found that the police had reasonable suspicion to stop a car after defendant May left a cash-only pain clinic and officers observed the pill bottle being passed from the front of the car to the rear seat passengers of the car. The court noted that the “sharing of pills is illegal drug activity that includes seemingly innocent behavior to the average citizen (passing a pill bottle to another person). In the context of the facts known to the officer, passing a prescription bottle around in a vehicle is consistent with illegal ‘sharing of pills’”. Id.

Finally, possession of a controlled substance, with that substance being a prescription drug, is typically a third degree felony punishable by up to five (5) years in prison, 5 years probation and/or a $5,000 fine. But the real danger with prescription drug possession is just how serious it can become with only a few pills. A few prescription drugs make the list as only a misdemeanor offense, these drugs are known as “Schedule V” drugs (but arrests for these are rare). Depending upon the brand/manufacturer, certain oxycodone pills can add up to a trafficking offense carrying 3 years of mandatory prison and a mandatory $50,000 fine with as few as 7 pills. These pills have a street value of roughly $150-$200, so you’re not talking about a lot of money to catch a big case. The same sort of trafficking offense for cocaine would require $10,000 worth of cocaine, and pounds and pounds of marijuana.

Bottom line: there are numerous defenses to the charge of possession of a prescription drug, far more than mentioned here. Two important defenses involve how law enforcement obtained the drugs (was the search or contact legal?), and the issues of proof surrounding a constructive possession circumstance. So, check out my blog and this website for lots more issues on search, seizure, and constructive possession info.

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