Another Prescription Pill Case Gets Thrown Out

pill bottle.jpgWhen it comes to prescription pill arrests, there seems to be little to no investigation conducted by police. I know that’s shocking to you, but somebody has to tell it like it is. But, do the police conduct an Interrogation? You bet. “Interrogation” is the new substitute for “investigation”. Basically, if you’re caught with prescription meds–without a pill bottle–you’re probably going to jail. I know of numerous cases here in Orlando in which the citizen had a prescription, but the police never did an investigation via local pharmacies in order to uncover the truth. The truth just isn’t that important these days. Fortunately, you have defense attorneys around who know how to find the truth, and use that knowledge to get a case dismissed.

When someone hires me to defend a felony charge of possession of oxycodone, hydrocodone, Xanax–or whatever–the first question asked is whether or not the client has ever had a prescription for the pill they were caught with, because there is such thing as a prescription defense in the State of Florida. Most cops think there is some sort of law out there that requires citizens to throw out their pills after a certain number of years. There is no such law. And, the police really have no excuse for not conducting an investigation on these matters. Pharmacy records are not “medical records” for confidentiality purposes, so the police have easy access to pharmacy records (they can just ask, no subpoena necessary), but are often too lazy to confirm or deny a suspect’s story. It’s easier to simply take the citizen to jail. But hey, who am I to tell Crime Incorporated that they should cut down on the number of arrests made by simply verifying a suspect’s claim that they have a prescription for the pill in their possession? As you know, the world is not a perfect place. We defense attorney’s can’t stop an arrest, but we can attempt to prevent a conviction.

If I had a dollar for every time I’m asked “Can’t we just file a motion to dismiss this case and make it all go away?” Sometimes, the answer is yes, we can. In a prescription pill case, motions to dismiss are common (technically called a “(c)4” motion, after the subsection of the criminal rules which permits a court to dismiss charges when the sworn facts do not allege a criminal act). The problem with (c)4 motions is that the defense and the state must agree to the “material facts”. When the two parties agree to the material facts, the (c)4 motion forces the court to dismiss the charges. Of course, the question is, will the prosecutor to agree to the facts? If they don’t agree, they file something called a “traverse”. A “traverse” will sink a motion to dismiss, as a legal traverse lets the court know that there is some disagreement as to the “material facts”. Let me show you how this plays out in real life. (and, you can check out another article I wrote on this topic, creatively titled “Motions to Dismiss“)

In Dixon v. State, 112 So.3d 721 (Fla. 2d DCA 2013), Dixon pled to charges of possession of alprazolam (Xanax) and possession of amphetamine (Adderall). Her defense attorney filed a motion to dismiss because she had a prescription, but that motion was denied. The motion to dismiss included a pharmacy printout verifying the prescription, yet the motion was denied because the state alleged that the pharmacy printout was insufficient proof of the prescription, claiming that “the only evidence of a valid prescription presented by the defendant is an unverified pharmacy profile from Friends Pharmacy…The undersigned [prosecutor] has also attempted several times to locate Dr. Buron Feinerman by calling several offices where that doctor may have practiced. That doctor cannot be located. The defendant has not provided any additional information to facilitate this verification process.” Id.

Do you see one of the problem’s here? The state’s traverse is claiming that the pharmacy printout is “unverified”, and that the prosecutor couldn’t locate the doctor. Therefore, the motion should be denied. Since when does a motion to dismiss require any “verification” other than the fact that a witness swears, under oath, that the motion to dismiss is factual? Sure, if the state wants to claim that the pharmacy printout is a fraudulent document, providing sworn evidence in their traverse of such fraud–that will defeat the motion. But that’s not the case here. The state’s traverse was simply whining that they–personally–were not able to verify the prescription to the degree they would like. Well, so what.

The appeals court in Dixon threw out her conviction, and the court articulated what basically amounts to a “so what” response to the state’s traverse. The court first reminded everyone of the rules on a motion to dismiss, noting that, “to overcome a motion to dismiss, the State’s travers ‘must bring forward facts sufficient to show only the ‘barest prima facie case’ . . . the state must show only that a reasonable jury could find the defendant guilty of the charged crime under the most favorable construction of the evidence.” Id. But, as you can see from the state’s whining about their failure to verify the prescription, the appeals court found that their “traverse offered no facts to counter Ms. Dixon’s factual assertions. Rather, it offered only an unsupported conclusory allegation that Ms. Dixon did not have a valid prescription, based only on its statement that Ms. Dixon’s pharmacy printout in her sworn motion was ‘unverified’ and that the doctor had not been located. It presented no evidence that the prescription was invalid or a forgery. The traverse failed to show that a reasonable jury could find Ms. Dixon guilty under the most favorable construction of the evidence…Therefore, we reverse as to this point.” Id.

Unfortunately, this sort of legally inadequate traverse is all too common. Prosecutors and judges simply don’t understand what constitutes a valid “traverse”. After reading this brief article, you now know more about (c)4 motions to dismiss than most lawyers–sad, but true.