Attorney for Prescription Drug Cases in Florida

Trafficking Prescription Drugs or Medication in Florida

One of the fastest growing areas in drug enforcement in Florida involves the illegal possession and trafficking of prescription medication. Individuals are also commonly charged with Doctor Shopping for Prescription Drugs in Florida. Unfortunately, Florida's laws concerning possession of prescription drugs allow overzealous prosecutors to charge the offense as "trafficking" for even a small amount of the medication. The term "trafficking" is not defined under Florida Statute Section 893.135, but it generally means "trading or dealing."

Designating a person as a drug trafficker simply because they obtained a bottle of pain medication without a valid prescription can lead to absurd result when minimum mandatory sentences are applied. Perhaps most problematic, because the case may be charged as a first degree felony, the person arrested is not typically eligible for any drug court diversion program, even if he has no prior offenses and needs drug treatment.

If the possession of the prescription medication was solely for the individual's use because of a drug addiction, then a "due process" as applied defense should be asserted which may result in a reduction of the charges to simple possession of a controlled substance.

If you have been charged with the very serious offense of possession or trafficking in a prescription drug in Florida, including Hillsborough County, Polk County, Pasco County, Hernando County, Manatee County or Pinellas County, contact an experienced drug crimes attorney at the Sammis Law Firm to discuss your case today. Although the laws in Florida are draconian when it comes to prescription drug trafficking offenses, an experienced criminal defense lawyer can fight to aggressively defend you against an illogical prosecution and protect you from an excessive sentence.

Aggregate Weight of the Drug and Any Mixture Containing the Drug

The cause of the problem is the way the weight of the prescription drugs are measured. Florida's drug statutes require that the weight include not just the weight of the controlled substance itself (which can easily be determined) but also the weight of the mixture of other non-controlled substances in the pill. Florida Statute Section 893.135(6) requires that when a controlled substance is mixed with another substance in a pill, "the weight of the controlled substance is deemed to be the total weight of the mixture” including the controlled substance and any other substance in the mixture.

For instance, a prescription for Vicodin may contain 10 milligrams of hydrocodone and 500 millegrams of acetaminophen sold under brand name Tylenol. Thus, if the person has a prescription bottle containing 90 pills, the total amount of the controlled substance is actually only 90 milligrams, but under the statutory scheme, the aggregate weight is approximately 45 grams which carries with it a twenty-five year minimum mandatory sentence in Florida State Prison.

For individuals who were lawfully prescribed the drug, and then became increasing tolerant and dependent on the medication, Florida's laws against possession and trafficking prescription medication are shockingly severe. Recent appellate opinions have been critical of the drug trafficking laws as drafted by the Florida legislature because of the absurd results and unintended consequences.

Draconian Statutory Minimum Mandatory Sentences

In Paey v. State, 943 So.2d 919 (Florida 2d DCA 2006), the Court held that mandatory minimum sentence of twenty-five years' imprisonment imposed on defendant for each of his seven convictions for trafficking in oxycodone did not violate the cruel and unusual punishment clause of Eighth Amendment or the Constitution of the State of Florida.

Justice Seals wrote a well reasoned dissenting opinion which discussed four scenarios illustrating the problem with the current statutory scheme in Florida dealing with prescription medication under Florida's anti-drug trafficking law:

1. The conscientious but forgetful high school principal.

A high school principal discovers on school grounds a cache of thirty packets of what he knows from experience to be cocaine, each packet containing one gram of cocaine. He takes possession of it, locks it in his desk until he can turn it over to the police, and informs his secretary of his intentions. An emergency calls him away and he forgets to call the police. Sixty days later his secretary discovers the cocaine is still there and reports it to a school resource officer. [If convicted, the minimum mandatory sentence under section 893.135(1)(b)(1)(a), trafficking in cocaine, is three years. The principal may offer the defense of temporary control for legal disposition, see Stanton v. State, 746 So.2d 1229 (Florida 3d DCA 1999), but ... that may not prevent an illogical prosecution.]

2. The concerned wife.

Suppose the defendant's wife, is worried that her husband is over-consuming oxycodone. The concerned wife hides the 700 oxycodone pills from him so that she can regulate his intake. [If convicted, the minimum mandatory sentence under section 893.135(1)(c)(1)(c), trafficking in illegal drugs, is twenty-five years in Florida State Prison.]

3. The inadvertently addicted doctor.

A doctor inadvertently becomes addicted to the painkillers he took following a skiing accident. He removes from the narcotics cabinet in his office twenty sample packets of oxycodone, each containing six pills (aggregate weight: thirty-six grams), which were given to him by a drug company representative for distribution to patients. He takes them home for his personal use. [If convicted, the minimum mandatory sentence is twenty-five years in Florida State Prison.

4. The medical marijuana widows.

Five elderly widows in a retirement condominium share a stash of twenty-five pounds of marijuana kept in a property locker on site. Two of them smoke cannabis for relief from nausea caused by chemotherapy. Two more use the marijuana to treat glaucoma. The fifth widow smokes marijuana because she finds it gives her relief from her severe arthritis pain. [If convicted, the minimum mandatory sentence under section 893.135(1)(a)(1), trafficking in cannabis, is three years.]

The "Prescription Defense" Applies to a Trafficking Charge in Florida

In O'Hara v. State, 964 So.2d 839 (Florida 2d DCA 2007), the Court determined that a defendant is entitled to have the jury instructed that it is “not illegal to possess hydrocodone if it had been prescribed” when charged with trafficking under section 893.135. In the O'Hara case, the defendant had presented evidence at trial that he had a valid prescription for the Vicodin tablets containing hydrocodone that formed the basis for the State of Florida's trafficking charge against him.

Further, the defendant had requested the trial court to instruct the jury that having a prescription was a defense to the trafficking charge under Florida law. A Circuit Court Judge in Tampa, Hillsborough County, Florida, denied the defendant's requested jury instruction on the "prescription defense." The defendant was convicted of the trafficking prescription drug charge. On appeal, he argued that the trial court erred by denying his request for a jury instruction on the prescription defense. The appellate court reversed the conviction, reasoning that the defendant was entitled to the requested jury instruction. The case was remanded for a new trial in Hillsborough County, FL.

Under the reasoning of the case, the prescription defense is an affirmative defense, which means that after the defendant has presented some evidence that he had a valid prescription, the prosecutor is required to prove that the defense does not exist beyond a reasonable doubt. The appellate court also indicated that at the new trial, the defendant could argue during the judgment of acquittal that the State had not disproved the affirmative defense that the medication was possessed with a valid prescription.

Sample Jury Instruction for the Prescription Defense

INSTRUCTION NO. ___

It is not unlawful to possess hydrocodone if the person obtained it by a valid prescription or from a practitioner acting in the course of a professional practice. In order to return a guilty verdict, the state must prove beyond a reasonable doubt that the defendant did not have a valid prescription for hydrocodone or obtained hydrocodone from a practitioner acting in the course of a professional practice. If the state does not prove beyond a reasonable doubt that the defendant did not have a valid prescription or hydrocodone or obtained hydrocodone from a practitioner acting in the course of a professional practice then you must return a not guilty verdict.

Problems Particular to Trafficking in Hydrocodone

Hydrocodone is the fifth most commonly prescribed pain medication in the United States. This medication is also highly addictive, and requires the patient to use increasing amounts due to the fact that the patient can quickly become resistant to smaller amounts of the medication.

Depending on the way hydrocodone is prescribed, it can be either a Schedule II or Schedule III drug. Florida Section 893.(3)(c)(4) defines hydrocodone as a Schedule III drug if the dosage unit (the pill) contains “not more than 15 milligrams” of the drug, with recognized therapeutic amounts of active ingredients that are not controlled substances. Typically, a Schedule III drug be filled or refilled 5 times during a six month period.

The Florida Statutory Scheme Provides:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c) 3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:

a. Is 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.

b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.

c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

Telephone Authorization for Schedule III Prescriptions

A doctor is generally allowed to give telephone authorization for a pharmacist to fill the Schedule III version of hydrocodone under the following guidelines.

A pharmacist may dispense a controlled substance listed in Schedule III, IV, or V pursuant to an oral prescription made by an individual practitioner and promptly reduced to writing by the pharmacist containing all information required for a valid prescription, except for the signature of the practitioner.

The prescription must include the patient’s full name and address, and the practitioner’s full name, address, and DEA registration number. The prescription must also include:

1. The name of the drug;
2. The form of dosage;
3. The strength;
4. Directions for use; and
5. The number of refills authorized (if any).

An individual designated by the practitioner, such as a nurse or secretary, may call in the prescription. The practitioner is responsible for ensuring that the prescription conforms to all requirements of the law and regulations, both federal and state.

Conclusions

The laws in Florida regarding possession and trafficking in prescription medication can lead to shockingly severe punishments. Contact a Tampa Drug Trafficking Attorney at the Sammis Law Firm experienced in dealing with drug abuse accusations involving prescription drugs in Tampa, Hillsborough County, St. Petersburg or Clearwater, Pinellas County, New Port Richey or Dade City, Pasco County, Brooksville Hernando County, Bradenton, Manatee County or Bartow, Polk County, Florida. Call 813-250-0500 to discuss your Drug Crime criminal charge with an attorney today.