Trafficking in Hydrocodone / Oxycodone
(or, “I didn‘t possess THAT much oxycodone, did I? No, you didn‘t.”)
For those arrested for possessing a small bottle of prescription meds in the State of Florida, welcome to the wonderful world of “Trafficking in a controlled substance." We're going to explore how it is that a couple dozen pills can rack up prison sentences usually reserved for Colombian drug lords. There’s harsh punishment for prescription drug possession, and a simple review of the minimum mandatory sentences for possession of oxycodone, hydrocodone, or xanax, can leave a person wondering why addiction to pharmaceutical meds is subject to more mandatory prison time than child molestation or armed robbery. Let’s dig deeper to better understand the absurdity.
First off, keep in mind that trafficking in oxycodone (etc) can really mean any number of things. Trafficking can mean (1) possession, or (2) sale, or (3) delivery, or (4) purchase. Thus, even if a citizen has a valid prescription for oxycodone, for example, a trafficking arrest can go down if the person is attempting to sell or deliver the pills to another person (but, of course, there's always the prescription defense). For example, in the case of Celest v. State of Florida, 2012 WL 511303 (Fla. 5th DCA 2012), Celeste was found guilty by a jury of trafficking in oxycodone, even though Celeste had a valid prescription for oxycodone. The State convicted not on the possession element, but rather the "sales" element. Fortunately, the appeals court overturned the conviction because there wasn't enough evidence to prove such. Check out my article "Trafficking in Oxycodone Just Got Harder to Prove" for more details on this issue.
Many pill trafficking cases begin with Big Brother reviewing your prescription records at the local pharmacy (without your permission and without a warrant). No, we don't live in communist China. Our government has conveniently ruled that pharmacy records are not as "private" as medical records, and are thus subject to police inspection without a warrant. A review of these records often leads to both a trafficking case, and a doctor shopping charge. For more information on this, read "The Government Wants to See Your Medical Records".
The minimum mandatory sentences for possessing hydrocodone or oxycodone increase as the weight increases, and recent legislation has lowered the penalties for possessing certain quantities of oxycodone or hydrocodone (effective July 1, 2014). All of the possession charges listed below are actually called "Trafficking" charges--due to the amounts involved. So, possessing 7 grams to 14 grams of Oxycodone constitutes the crime of "trafficking", and this crime carries a minimum 3 years prison, and a fine of $50,000. To prove the crime of trafficking in hydrocodone, it takes a bit more, 14 grams to 28 grams of hydrocodone carries a mandatory minimum prison sentence of 3 years, and a fine of $50,000 (bear in mind that it only takes 23 hydrcodone pills to get a mandatory prison sentence!! More on this later…). Unfortunately, all challenges to these fines as being disproportionate to the crime have failed (See Gordon v. State, 2D12-7, Fla. 2d DCA, June 6, 2014).Also, for a more detailed breakdown of the trafficking minimum mandatory sentences for hydrocodone and oxycodone, click on my trafficking sentences page.
The minimum mandatory prison sentences for pill possession are based upon the weight of the illegal substance, right? Wrong. The charge is based upon the total weight of the pill--each pill contains both an illegal substance and the weight of the legal substances contained within the pill (usually Tylonol, asprin, etc). And my friends, that's the main problem. Let's review why this is so unfair (unless, of course, you think 3 years prison is a reasonable punishment for possessing 23 hydrocodone pills).The Correct, Scientific Way to Weigh a Substance....
Take an arrest for twenty five (25) Hydrocodone pills, marked “Watson 540”. These pills weigh 15.8 grams. Because this weight falls within the 14 grams to 28 grams category listed above, the minimum mandatory prison sentence for 25 pills is 3 years prison. (Yes, this is a substantial improvement over the 15 years prison that this charge would have carried before the laws were changed in July of 2014, but still, 3 years prison is still pretty harsh!)
The question here is, “Did you REALLY possess that many grams of hydrocodone?” Scientifically speaking, NO. Here’s why. The 25 pills labeled “Watson 540” (light blue oval pill) are a generic form of Lortab, an opioid pain medication containing 10 mg hydrocodone and 500 mg acetaminophen (Tylenol). Remember grade school math taught us that 1000 mg = 1 gram. Thus, 25 hydrocodone pills multiplied by 10 mg of illegal substance per pill equals 0.25 grams hydrocodone, total. Wow, ¼ gram of hydrocodone is all that is—scientifically—possessed in 25 pills. ¼ gram is not even close to a trafficking amount of hydrocodone. As a matter of fact, to actually possess the 15.8 grams of hydrocodone in our example, you would need to possess 1,580 pills…..not 25.
Here's another example. A "Percocet" tablet weighs 650 mg of acetominiphen, and 10 mg of oxycodone,. Thus, if we do the math and ignore the weight of any fillers in the pill (which, can be substantial), it only takes 11 Percocet pills to get a 3 year minimum mandatory prison sentence (remember, we're not even multiplying the entire weight of the pill, which would include fillers, we're just taking the two major components of the pill and adding those weights together; 660mg x 11 pills = 7.260 grams).
Contrast the trafficking in oxycodone example above, using Percocet's, with an "OxyContin" pill containing 80 mg of oxycodone per pill. These OxyContin's weigh 269 mg per pill, so it would take 27 OxyContin pills of the 80 mg variety to reach the trafficking threshold of 7 grams. But, these 11 OxyContin pills do NOT constitute trafficking like the 11 Percocet pills, these 11 OxyContin constitute a mere possession of oxycodone charge because they will weigh only 2.9 grams. Even though you possess more raw oxycodone via the OxyContin pills than with the Percocets, the 11 Percocets will trigger a trafficking charge and the 11 OxyContins will not (each OxyContin contains 80mg, for a total of 880mg of oxycodone; 11 Percocets only contain 110mg of total oxycodone). Odd result, right? Are you with me so far? Good.The Heart of the Problem
The Florida Courts and the Florida drug statutes share the blame for this situation. Florida's drug laws are modeled after the Federal criminal codes, thus we have uniform drug enforcement all across the United States. Our Federal government has now backed off sentencing based upon the total weight of the pill, but Florida has not yet followed suit. The Federal government realized the "equal protection" problems associated with giving vastly different sentences to persons possessing the same amount of the illegal substance (take the example above of Lorcet vs. Norco pills). Currently, Florida courts refuse to follow the Federal sentencing guidelines. For further details, read my article on the subject, "Federal Government Abandoned Unfair Trafficking Sentences Long Ago, Florida Courts Still Holding On".
Another problem is found in the language of the drug statute whereby it illegal to possess a drug “or any mixture containing any such substance”. Thus, you need not possess the drug in it’s purest form to be found guilty (powder cocaine often contains ‘mixture’ substances to bulk up the weight prior to sale), you may possess merely a mixture of such substance and still be found guilty. Ok, so it’s illegal to possess a mixture, but is it proper to then include the weight of perfectly legal substances as though they were illegal? Hasn't technology advanced to the point whereby an accurate, scientific weight can be determined? Apparently, our legislature and courts do not care enough about justice to introduce such scientific accuracy into criminal cases (unless, of course, you're charged with DUI, then they'd be happy to tell you that your blood contains 0.089 percent alcohol). Current Florida law supports such injustice, but there is hope here, there are ways to fight it. Give criminal defense attorney John Guidry a call to discuss your options, it’s a free call. Thanks.