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Florida's Prescription Defense 

Were you arrested for being in possession of a controlled substance, but you actually had a valid prescription for those drugs seized? In those cases, your criminal defense attorney can file a motion to dismiss the charge under Florida's affirmative prescription drug defense.

If the case were to proceed to trial, a special instruction is necessary where there is evidence that the defendant acted as an agent for the person who had a prescription. See McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010). Florida law is not well settled on the issue of whether a defendant may rely on the prescription defense when he or she is charged with Possession With Intent. See Celeste v. State, 79 So.3d 898 (Fla. 5th DCA 2012); Ayotte v. State, 67 So.3d 330 (Fla. 1st DCA 2011); and Wagner v. State, 88 So.3d 250 (Fla. 4th DCA 2012).

In Knipp v. State, 67 So.3d 376 (Fla. 4th DCA 2011), the court discussed the availability of the prescription defense for a person who obtained the prescription in violation of Florida's doctor shopping statute.

Attorney for Prescription Drug Defenses in Tampa, FL

Contact an experienced drug crime attorney in Tampa, FL, to discuss your charges pending in Hillsborough County. We represent clients charged with a wide range of drug crimes including possession, possession with intent to sell, or drug trafficking. 

Our drug defense attorneys understand how to use important defenses such as the entrapment defense, the prescription drug defense, or the temporary possession for legal disposal.

Call (813) 250-0500 to speak with an attorney


Jury Instructions for the Drug Prescription Defense

The best way to understand Florida's prescription drug defense is to read the standard jury instruction explaining the affirmative defense. The jury instruction for the prescription drug defense was first adopted in 2013.Under Florida Standard Jury Instruction 3.6(n), it is an affirmative defense to a drug crime if the controlled substance possessed was legally obtained from a practitioner or pursuant to a valid prescription under Section 499.03(1), 893.13(6)(a) Fla. Stats.

Under Florida Standard Jury Instruction 3.6(n), it is an affirmative defense to a drug crime if the controlled substance possessed was legally obtained from a practitioner or pursuant to a valid prescription under Section 499.03(1), 893.13(6)(a) Fla. Stats. The standard jury instruction reads as follows:

It is a defense to the charge of [possession] [trafficking via possession] for a person to possess a controlled substance which [he][she] 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.

Like all affirmative defenses and pursuant to § 893.10(1), Fla. Stat., the burden of going forward with evidence of the defense is upon the defendant. Fla. Stats. 893.10(1), 893.13(6)(a), and 499.03(1) are silent, however, as to the burden of persuasion for the affirmative defense.

The Burden of Persuasion for the Prescription Drug Defense

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution).

In the absence of case law, trial judges must resolve the issue via a special instruction. See Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), for further guidance.

For example, if the burden to prove the affirmative defense is on the defendant under the preponderance of the evidence standard.

If you find the defendant proved by a preponderance of the evidence that [he][she] lawfully obtained the controlled substance 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, you should find [him][her] not guilty of [possession of a controlled substance] [trafficking via possession].

If the defendant did not prove by a preponderance of the evidence that [he][she] lawfully obtained the controlled substance 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, you should find [him][her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.

Or, if the burden of disproving the affirmative defense is on the State under the beyond a reasonable doubt standard.

If you find that the State proved beyond a reasonable doubt that the defendant did not lawfully obtain the controlled substance 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, you should find [him][her] guilty, if all of the elements of the charge have also been proven beyond a reasonable doubt.

However, if you have a reasonable doubt as to whether the defendant lawfully obtained the controlled substance 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, you should find [him][her] not guilty of [possession of a controlled substance] [trafficking via possession].

Definitions in Florida's Statute on the Defense for Having a Valid Prescription

Under § 893.02(21), Fla. Stat., the term “practitioner” means a physician licensed pursuant to chapter 458, a dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, a naturopath licensed pursuant to chapter 462, or a podiatric physician licensed pursuant to chapter 461, provided such practitioner holds a valid federal controlled substance registry number.

Under § 893.02(22), Fla. Stat., the term “prescription” is defined to mean an order for drugs or medicinal supplies written, signed, or transmitted by word of mouth, telephone, telegram, or other means of communication by a duly licensed practitioner licensed by the laws of the state to prescribe such drugs or medicinal supplies, issued in good faith and in the course of professional practice, intended to be filled, compounded, or dispensed by another person licensed by the laws of the state to do so.

The term "prescription"also includes an order for drugs or medicinal supplies so transmitted or written by a physician, dentist, veterinarian, or other practitioner licensed to practice in a state other than Florida if the pharmacist called upon to fill the order determines, in the exercise of his or her professional judgment, that the order was issued pursuant to a valid patient-physician relationship, that it is authentic, and that the drugs or medicinal supplies ordered are considered necessary for the continuation of treatment of a chronic or recurrent illness.


This article was last updated on Wednesday, February 7, 2018.