THE PRESCRIPTION DEFENSE- EXPLAINING THE DEFENSE THAT THE CONTROLLED SUBSTANCE WAS LAWFULLY OBTAINED

June 12, 2022 Don Pumphrey, Jr. Drug Charges Social Share

Florida’s war on drugs has made the state one of the strictest when it comes to illegal substances. Being found guilty of illegally possessing a controlled substance could have you facing harsh penalties since most cases are treated as felonies. Not only could you face prison time but could be looking at lifelong effects if found guilty.

This type of offense can be prosecuted in both a State and Federal Court, making having an experienced defense attorney by your side imperative. While the type and quantity of the controlled substance play a vital role in the type of charge a defendant could face, having a valid doctor’s prescription could make a huge difference in whether or not you are found guilty of this crime.

In this blog, we will be covering what the Prescription Defense is, a curious case that was heard in our District Court of Appeals and successfully raised the Prescription Defense, and a subsequent case that also dealt with a defendant trying to raise this defense but was unsuccessful.

What is a Controlled Substance?

A Controlled substance can be a variety of different drugs. From prescribed medications to illegal drugs or any other type of banned substance that could potentially be abused. As long as a person can become addicted or cause themselves physical or mental harm by using the substance, the drugs classify as a controlled substance.

Florida Statute Section 893.03 sets out five different categories for the many different types of drugs that vary from serious punishments to light penalties. Schedule I is the most serious and Schedule V is the least serious.

• Schedule I. Is for drugs that have a high potential for abuse and no acknowledged medical use in the United States.
  • Some examples of drugs in this category include: GHB and heroin.
• Schedule II. Is for drugs that have a high potential for abuse and a very limited accepted medical use in the United States.
  • Some examples of drugs in this category include: opium, cocaine, morphine, Adderall and Vicodin.
• Schedule III. Is for drugs that have a potential for abuse, but lower than Schedule I or II drugs and an accepted medical use in the United States.
  • Some examples of drugs in this category include: barbituric acid and anabolic steroids.
• Schedule IV. Is for drugs that have a lower potential for abuse than Schedule III drugs and accepted medical uses in the United States.
  • Some examples of drugs in this category include: Xanax and Ambien.
• Schedule V. Is for drugs that have the lowest potential for abuse and currently has an accepted medical use in the United States.
  • Abuse of these drugs may lead to only limited physical or psychological dependence when compared to those drugs in Schedule IV.
  • Some examples of drugs in this category include: Some types of weight loss appetite suppressants.

To learn more about Controlled Substances, visit our blog here.

Possible Penalties if Convicted of Possessing a Controlled Substance in Florida

Under Florida Statute Section 893.13, the legislation penalizes possession of a controlled substance based on the type of schedule that was outlined above.

For a Schedule V drug, a person can be charged with a first-degree misdemeanor. This is punishable by up to one year in jail and/or a fine of up to $1,000. Possession of 20 grams or less of marijuana also is considered a first-degree misdemeanor.

For Schedule III or IV, a person can be charged with a third-degree felony. This is punishable by prison time of up to five years and/or a fine of up to $5,000. If convicted of any narcotics possession, you also could have your driver’s license suspended for two years.

For Schedule I or II, a person can be charged with a second or third-degree felony, depending on the type of controlled substance. A second-degree felony is punishable by prison time of up to fifteen years and/or a fine of up to $10,000.

If the person is charged with possession with the intent to sell, things get even more serious. This is because the punishments become harsher when the person is being charged with trying to sell the controlled substance. Some of the factors the court looks at include:

• Whether there were large quantities of the controlled substance;
• If there were any packaging or paraphernalia,
  • Like baggies or scales;
• The way that the substances were packaged;
• If the defendant admitted to selling or planning to sell the drugs to others;
• If there were large amounts of cash or weapons when the defendant was arrested.

To better understand the penalties that a serious charge like possessing with the intent to sell a controlled substance could pose, please visit our blog here.

What is the Prescription Defense?

The Prescription Defense is an affirmative defense. Affirmative defenses come into play when the defendant admits to the alleged charge but avoids either all or some of the liability by introducing an excuse that justified their actions at the time that the offense occurred.

In the case of a controlled substance, the accused admits that they had the controlled substances on them, but by presenting evidence showing that they were able to legally have that prescription drug, the defendant is able to prove they are not guilty of the charged crime.

Because the controlled substances include those drugs that are prescribed by a doctor, the legislation allows those who have a valid prescription to not face criminal prosecution for something that they are being medically prescribed. If a defendant is able to successfully assert that they had a valid prescription or order from a licensed physician, they or a loved one could avoid criminal charges.

The Florida Bar sets out a group of Jury Instructions that help explain to jurors what they need to consider when deciding if a person is guilty of possessing a controlled substance. These instructions are read to the jury once the trial is over to help them understand how to evaluate and weigh the evidence presented to them during the trial. To learn more about jury instructions, please visit our blog here.

The jury instructions for the affirmative defense that the controlled substance was lawfully obtained from a practitioner or by a valid prescription says that the defendant bears the burden of proving this affirmative defense. This means that the defendant has to put forth some evidence first to use the defense.

The Instructions, however, make it clear that our case law is not 100% sure of who bears the burden of persuasion. The burden of persuasion is the requirement that must be met in persuading the jury that the side with the burden of proof has met each and every element of a charge, or in this case a defense.

The judge is the one who decides who bears the heavy weight of persuading the jury. If the judge decides that the defendant must be the one to persuade the jury, the instructions read:

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.

The big takeaway from this instruction is that the defendant need only prove by a preponderance of the evidence that they (1) obtained the controlled substance (2) from either a licensed practitioner, from a valid prescription, or from an order of a practitioner while they were acting in their professional practice. This standard of evidence is met when the defendant proves that there is a greater than 50% chance that the alleged affirmative defense is true.

If the judge decides that the prosecution is the one who carries the burden of persuading the jury, however, then the standard changes to beyond a reasonable doubt. This much higher standard means that the prosecution must prove beyond a reasonable doubt to each juror every single one of the elements of the crime. Meaning that if the jury is not convinced that the prosecution met even just one element, then they must find the defendant not guilty.

What if I’m holding the controlled substance for a sick family member?

In 2010, the First District Court of Appeals decided the case of McCoy v. State. This case is a great example of what lengths prosecutors will sometimes go to in their zealous pursuit to bring forth justice. Unfortunately, this means that they are sometimes willing to charge those who are clearly innocent simply to prove a point. Our district court found that the prescription defense is available to an innocent person, who was holding a controlled substance for another who had a legally recognized reason for possessing the prescribed drug.

Mrs. McCoy was arrested and sentenced for trafficking in hydrocodone. Her husband suffered chronic back pain and was regularly prescribed hydrocodone for the pain. Her husband explained that it was his practice to keep the majority of the pills in a locked medicine cabinet, and due to his work clothes not having any pockets, his wife would carry a small number of pills in the vial used to dispense his prescription medication.

Unfortunately, Mrs. McCoy was stopped by a police officer due to a traffic offense and was found to be in possession of the prescription drug vial. Even though the prescription was filled that day, she only had 13 tablets of two different-colored tablets. But as it was their custom, they had locked away the majority of the pills and she was only holding for her husband a small amount for him. As it turns out, the officer grew suspicious and asked her if she had taken any pills in the past. Thinking that she had been prescribed by the same doctor in the past the same type of pills, she told the officers so and was then arrested for drug trafficking.

The trial judge did not agree with her motion to acquit when she raised the prescription defense. The prosecution argued that this defense only applied to the person whom the medication was prescribed but her attorney did not give up. At the end of the trial, her attorney asked the trial judge to include the prescription defense in the jury instructions. Unfortunately, the judge refused to include the defense. To make things worse, the prosecution stated in their closing arguments how they wouldn’t hear in the judge’s instructions how having the husband’s pills was a defense for the charged crime.

Because of all these issues, our first district court of appeals found that not bringing the issue to the jurors was a fundamental error and reversed the trial court’s decision. This means that the conviction was overturned and the case had to go back to retrial.

Does that mean I only need to have a valid prescription to raise this defense?

In Day v. State, our First District Court of Appeals found that it was not a fundamental error for the trial court to not give jury instructions about the prescription defense when the evidence did not support the defendant’s claims to have obtained the pills legally.

Mr. Day was pulled over due to a cracked windshield in March of 2011. During the traffic stop, a drug-detection dog alerted their handler to the presence of narcotics. The Mr. Day and his girlfriend got out of the car and the detective asked the girlfriend if she had anything on her that could get her in trouble. She subsequently admitted to the officer that Day had given her a bag of hydrocodone and handed him a bag of pills from her pants.

The detective testified that Day admitted to not having a prescription for the pills, knowing it was illegal for him to have those pills, and that he had gone and purchased them from a person in the valley. Two other detectives testified that the appellant admitted that he did not have a prescription and that he bought all 33 of the pills from an individual illegally during the arrest and booking.

Day tried to raise the prescription defense by submitting evidence of records from two pharmacies for over 300 hydrocodone pills from August 2010 to November 2010. Appellant claimed that the 33 pills were leftover medicine from his November prescription for 28 pills. The appellant further brought into evidence his medical records but unfortunately for him, the records indicated that in a December 2010 ER visit he had claimed to have been off the drug for over a week and was seeking a refill.

Due to the testimony from three different detectives, plus Day’s own evidence, the trial court found there was insufficient evidence to merit the need for instructions on the prescription defense to the jury.

In other words, a defendant can’t just bring up a prescription but must also be able to show that the drugs are from a current valid prescription to successfully raise this defense.

Finding A Drug Lawyer in Tallahassee

If you have been charged with illegal possession of prescription drugs in Leon County, contact the attorneys at Pumphrey Law to discuss the specific facts of your case. An experienced drug defense attorney in Tallahassee can find applicable defenses to your charge or any other mitigating circumstances.

Our team of attorneys has represented those accused of illegal possession of prescription drugs in Florida and will aggressively fight your criminal charge. Contact Pumphrey Law today at (850) 681-7777 for a free consultation about your alleged prescription drug possession offense.

Written by Jesus Lozano

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