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The Prescription Defense

Jesse C. Vivian, RPh, JD
Professor, Department of Pharmacy Practice
College of Pharmacy and Health Sciences
Wayne State University

Detroit, Michigan
 



5/18/2011

US Pharm
. 2011;36(5):49-51. 

To pharmacists, and perhaps to all patients and their families or caregivers, the following case reveals the absurdity of a prosecutor’s blatant intent to convict somebody of a crime no matter what the statutory law says in plain English or what the consequences of a conviction might mean to an obviously innocent individual.1 That this case went to trial and on to an appellate court—that charges were even filed against the defendant and prosecuted at all—goes so far beyond the bounds of imagination that it is no wonder people think little of lawyers and the justice system of this country.2 It well could be that there was something else illegal going on, but the police and prosecutors could not find the evidence to bring a real drug-trafficking case to trial; instead, they took a situation completely out of context and tried to win a conviction at any expense. This is nothing like convicting Al Capone of tax evasion because the police could not put together enough of a case to prosecute him for bootlegging. This is a far more dangerous situation and, unless someone stops this foolishness, it could happen to anyone. 

Facts of the Case

The defendant’s husband had a history of back problems, including chronic pain. His physician regularly prescribed hydrocodone (Lorcet), usually at the rate of 60 tablets per month. The patient’s practice was to put his pain medication in a jar, which he kept in a locked safe in their home. He retained a small number of pills in the vial used to dispense the hydrocodone, and the label from the pharmacy properly contained all the information legally required under state and federal laws. It was also his normal practice to give his wife the vial containing the tablets to hold for him on a daily basis because his work clothes did not have any pockets. 

Following Murphy’s law (i.e., if something can go wrong, it will), the wife was stopped by a police officer, apparently in connection with a traffic offense (the details are not explained in the opinion). The officer found that she was in possession of a prescription drug vial that contained two different-colored hydrocodone tablets. (Quick quiz: How many different hydrocodone tablets have you ever seen?) The label indicated that the prescription for 60 tablets for her husband had been filled and dispensed that same day, but the officer found that the vial contained only 13 tablets. The arresting officer asked her at the time of her arrest if she used any of the medication, to which she responded that “she had taken the pills in the past.” She was arrested and charged with drug trafficking based solely on the fact that she was in possession of hydrocodone located in the pill bottle prescribed for her husband. 

Trial Proceedings

At her trial, the defendant-wife raised as her sole defense that she was merely holding the drugs for her husband. The husband testified as to his normal practices when he obtained a new prescription, as previously described. The wife explained that when the officer asked her if she had taken any of the pills and she responded affirmatively, she was referring to the fact that the same medication had been prescribed for her in the past by the same physician. This later part of her testimony was supposedly not contained in the arresting officer’s arrest documents. 

Before the trial began, the defendant filed a motion for acquittal of the criminal charges based on a doctrine known as the prescription defense. This affirmative defense, she argued, is based on a Florida statute, which states: “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 or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree.”3 

The Florida state prosecutor opposed the motion, arguing that while the prescription defense has been recognized as legally valid,4 it only applies to the person for whom the medication was prescribed and not someone else, like the wife, who is found in possession of the controlled substance. The motion to dismiss the charges was denied. At the end of the trial, the defendant asked the judge to include the prescription defense in the jury instructions, but the trial court judge refused to do so. 

The wife’s problem of not being able to defend herself on these criminal charges was compounded by the prosecutor in his closing arguments to the jury. The prosecutor stated, “They [the defendant and her attorney] want you to say, so what, they’re her husband’s pills, of course she can have them, but you know what you won’t hear, when the Judge reads you the law, you won’t hear that she had a right to have them because, after all, hydrocodone is a controlled substance. You will not hear from the judge that it is a defense for this defendant to have the pills because her husband has a prescription. You will not hear that. If you do not hear that, then there is no defense in the law for this defendant to have the pills.”5 

Further, the prosecutor added, “anyone can be charged with trafficking for having pills in their possession.” After hearing the prosecutor’s claims that there was no defense to the charges against the defendant, the jury convicted her, not having been informed of the actual law. 

Court of Appeals

The Florida appellate court recognized that while the prescription defense has been accepted by other Florida courts,6 the doctrine had never been applied when someone other than the patient for whom the medication was prescribed was found in possession of controlled substances. Looking to other jurisdictions where the issue has been raised, this court noted that states with legislation similar to that of the Florida statute have extended the defense to others beside the patient found to be in possession of a controlled substance.7 

The Court of Appeals then engaged in an exercise of what is called in pari materia, a Latin term meaning “upon the same matter or subject, statutes are to be construed together.”8 Therefore, the court considered a different but related statute indicating that “pharmacies may lawfully dispense medications to a consumer or his or her agent [emphasis in original].”9 An agent, noted the court, is “one who is authorized to act for or in place of another.”10 

The Court of Appeals also concluded: “[The defendant] and her husband’s testimony provided competent, substantial evidence supporting the prescription defense. However, the state presented evidence (including appellant’s statement to the officer that she took the pills and the questionable nature in which the pills were bottled) which contradicted that innocent explanation, creating a jury question as to appellant’s guilt. Accordingly, the trial court did not err in denying the motion for judgment of acquittal.”11 

When it came to analyzing the jury instructions, specifically the trial court’s refusal to read the prescription defense to the jury, along with the prosecutor’s closing argument to the effect that there is no defense to the charges against the defendant, the Court of Appeals took a totally different approach. Here, the court said that the lower court’s failure to tell the jury about the prescription defense was a fundamental error that deprived the defendant of a fair trial. Taking into account the prosecutor’s misleading and legally erroneous argument that there is no defense to the crime charged, the Court of Appeals concluded that “this is one of those rare cases in which fundamental error has occurred” that requires reversal of the conviction. 

Analysis

Thus, the defendant-wife was exonerated of the charges against her. Taking the so-called War on Drugs to the level displayed in this case is reminiscent of Gestapo-like tactics. This whole case scenario could have been avoided if somebody had taken the time to read the federal Controlled Substances Act (CSA) and the definitions of some of the wording it contains. For example, according to the CSA, “The term ‘dispense’ means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling, or compounding necessary to prepare the substance for such delivery. The term ‘dispenser’ means a practitioner who so delivers a controlled substance to an ultimate user or research subject.”12 

The crux of this matter then becomes the definition of an ultimate user. According to the CSA, it means “a person who has lawfully obtained, and who possesses, a controlled substance for his own use or for the use of a member of his household or for an animal owned by him or by a member of his household [emphasis added].”13 

This case was tried under Florida law. Perhaps that state does not have an ultimate-user provision such as the one found in the federal code. Nevertheless, given that the federal law explicitly states that a member of the patient’s household is considered an ultimate user to whom a controlled substance may be properly dispensed and possessed, it is inconceivable that a Florida prosecutor would not know this and proceed against this defendant under these circumstances. The Florida trial court judge and/or the Florida Court of Appeals could very easily have referenced the federal CSA definitions to help construe the legislative intent of the Florida lawmakers without going to the lengths taken in this case. 

One final point concerns cost. This case cost the taxpayers of Florida directly, and in some ways indirectly the rest of us who pay taxes, a lot of money. The defendant-wife was represented from trial through the appellate process by the office of the public defender. Thus, taxpayers paid all of the costs on both sides—those of the defendant, the police who arrested her, the investigators who put the evidence together, the chief prosecutor who decided to move forward with the prosecution, the trial prosecutor, the trial court judge, and the personnel running the trial court system—and all of the costs associated with maintaining, running, and hearing cases by the Court of Appeals. 

This fiasco just does not fit well with the notions of American justice. Let us all hope we never see this kind of case again. But don’t hold your breath. 

REFERENCES

1. McCoy v. Florida, (Slip Op No. 1Do9-5819, December 21, 2010), 2010 Fla App Lexis 19939; 35 Fla L Weekly D 2876.
2. Brushwood DB. The ‘prescription defense’ to a charge of drug trafficking. Encyclopedia Britannica. [Subscription required.] Adopted from Pharmacy Today. September 2007. www.britannica.com/bps/
additionalcontent/18/26906991/ The-prescription-defense-to-a- charge-of-drug-trafficking. Accessed January 28, 2011.
3. §893.13(6)(a), Fla Stat (2008).
4. O’Hara v. Florida, 964 So 2d 839 (Fla 2d DCA 2007) and Smith v. Florida, 965 So 2d 176 (Fla 2d DCA 2007).
5. See Note 1, supra.
6. See Note 4, supra.
7. State v. Waters, 2009; Ohio 6151 (Ohio App 11th Dist, November 20, 2009). Recognizing that the prescription defense could include possessing pills for another but finding facts of the case did not warrant the defense. State v. Miller, 193 P3d 92 (Utah 2008). Finding that temporary possession of pills belonging to another can constitute innocent possession. State v. Blocker, 133 SW3d 502, 505-06 (Mo. 2004). Finding that Missouri statute authorized possession of pills by a family member.
8. In pari materia. Law Dictionary. www.law-dictionary.org/IN+
PARI+MATERIA.asp?q=IN+PARI+ MATERIA. Accessed January 28, 2011.
9. §893.04(2)(a), Fla Stat (2008).
10. Garner BA, ed. Definition of agent. Black’s Law Dictionary. 8th ed. St. Paul, MN: Thomson West; 2004.
11. See Note 1, supra.
12. 21 USC §802(10).
13. 21 USC §802(27). 

To comment on this article, contact rdavidson@uspharmacist.com.

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