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One of the fastest growing areas in drug enforcement in Florida involves the illegal possession and trafficking of prescription medication. The laws in Florida for the 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.
When the offense is 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 criminal defense attorney focused on fighting serious drug crimes.
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.
Contact the attorneys at the Sammis Law Firm to discuss your case today.
The cause of the problem is that the prosecution is based on the "aggregate weight" of the drug and any mixture containing the drug instead of the actual weight of the drug which is a fraction of the aggregate weight.
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 millgrams of acetaminophen sold under brand name Tylenol. So 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 prison sentence.
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.
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.
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:
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.]
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.]
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.
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.]
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
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.
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.
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.
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.
One of the most common factual scenario in these cases occurs when a pharmacist receives a suspicious prescription. The pharmacist takes the prescription and tells the individual to come back to pick up the pills in a few hours. The pharmacist then attempts to contact the doctor who prescribed the medication only to find out that the prescription is fraudulent.
The pharmacist then contacts local law enforcement officers who advise the pharmacist to go ahead and fill the prescription. Law enforcement arranges a reverse-sting operation in which they wait in the parking lot of the pharmacy while the individual picks up the prescription medication.
The law enforcement officers then follow the individual out of the parking lot and conduct and investigatory stop of the vehicle to arrest the person for presenting the fraudulent prescription and for trafficking the controlled substance. Law enforcement may also attempt to seize and forfeit the vehicle being driven by the individual who used the vehicle to pick up the fraudulent prescription.
From the perspective of the law enforcement officer, the charges are much more serious if the pharmacist actually fills the prescription, including a possible fifteen-year minimum mandatory sentence for trafficking in a controlled substance such as oxycodone or hydrocodone.
In these cases, it can be argued that the pharmacist has broken the law by filling a prescription known to be false. Furthermore, the pharmacist may be subject to professional discipline even if the pharmacist was acting under the direction of a law enforcement officer.
In certain cases, an "informer" is immunized from prosecution for possession or delivery of a controlled substance that occurs under the direction of law enforcement during the course of a criminal investigation. See Florida Statute Section 893.13(9).
That statute does not, however, contain any provision that would authorize a pharmacist to break the law and their professional responsibilities by filling a prescription in bad faith and not in the course of a professional practice. Furthermore, it is a crime for a pharmacist to fill a prescription when knowing that the prescription if a forgery. See Florida Statute Section 465.015(2).
Furthermore, even if filling the prescription were not a criminal offense, the pharmacist might also be subjecting herself or himself to serious professional penalties under Florida Statute Section 465.016(1), including revocation or suspension of an existing license and a fine of up to $10,000 per violation.
Additionally, it could be argued that the law enforcement officers have also broken the law by soliciting the pharmacist to break the law. The question then becomes: "Does this illegality create a due process violation that can result in the dismissal of the criminal trafficking charges against the person who picked up the prescription?"
The issue has not been squarely addressed by the courts in Florida. However, generally, due process requires a dismissal of the trafficking charges if the conduct of the reverse-sting operation is so outrageous and so offensive to the "canons of decency and fairness which express the notions of justice." See State v. Williams, 623 So.2d 462, 463 (Fla. 1993).
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:
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.
Florida Moves Slowly on Monitoring Painkiller Prescriptions - Article in the St. Petersburg Times which discusses the fact that Florida is one of the last states to develop a monitoring system to track drugs being prescribed within the State. As a result of the lax medical regulations in Florida, "pain clinics" have sprung up throughout the state. Florida leads the United States in prescriptions for oxycodone, with most of these prescriptions coming from "pain management clinics."
The laws in Florida regarding possession and trafficking in prescription medication can lead to shockingly severe punishments. Contact an attorney experienced in drug trafficking crimes in Tampa, Hillsborough County, FL.
The attorneys at the Sammis Law Firm are 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, Bartow, Polk County, Florida.
Call 813-250-0500 today.
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Call us to schedule a time to talk with the attorneys in the office or over the phone.
Office: 813.250.0500 Fax: 813.276.1600
Sammis Law Firm 1005 N. Marion St. Tampa, FL 33602
Meet Our Attorneys
Jason D. SammisTampa native with 15 years experience. University of Florida College of Law Graduate...Read more
Leslie M. SammisFocused on DUI Defense for more than 15 years. Former Assistant Public Defender...Read more
Matthew A. MenendezAs a former assistant public defender, Matthew is experienced in trial advocacy and motion...Read more
Amanda BrunsonWith over 25 jury trials and 40 bench trials, Amanda is experienced in...Read more
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Tara ColeWith more than fourteen years experience as a paralegal / legal assistant, Tara Cole is...Read more