Possession of Alprazolam and Hydrocodone Convictions Overturned

perscription pill bottle.jpgYes, the title of this article gives away the ending, but it’s the journey, not the destination.

FACTS: Daniel Shedd is just chilling, drinking a beer, driving his mom’s car, when he was stopped by the Florida Highway Patrol (FHP). Shedd v. State, 137 So. 3d 456 (Fla. 4th DCA 2014). FHP chats him up, and Daniel reveals to the officer that he has a prescription pill habit. In case you didn’t know, telling a cop you have a drug habit is like a sorority girl announcing to the frat party that she’s a nymphomaniac–there’s going to be some shenanigans as a result of this announcement. So, with Daniel’s announcement comes the obligatory search of the car, and Daniel is arrested for possession of marijuana, possession of alprazolam (Xanax), and possession of hydrocodone (it’s also a crime to have an open container of alcohol in the car, but I guess they let that one slide).

It never ceases to amaze me that people drinking a beer, and driving, drive horribly. If you’re doing something wrong, can’t you drive like a normal human being? Daniel takes it a step further, because not only is he driving bad and drinking–he has marijuana in the car, Xanax in the car, and hydrocodone in the car. It is possible that the Golden Coral buffet o’ drugs in Daniel’s car gave him a surge of poor driving adrenaline, just enough to draw law enforcement’s attention. However, things started looking better for Daniel when he explained to the cop that the alprazolam and hydrocodone both belong to his mother (indeed, the car even belongs to mom).

Actually, not only did the pills belong to mom, the pill bottles had mom’s name written on them. So, assuming the FHP officer could read, how hard can this be for FHP to verify? Unfortunately, the old “these drugs belong to my mom” routine doesn’t always work, because law enforcement often lack the skills/desire/work ethic needed to do a simple investigation. If you think law enforcement investigations resemble that of NCIS or even Angela Landsbury, you’re sadly mistaken. Investigations into felony prescription drug offenses are pretty rare. In this case, if FHP would have taken just a few minutes to contact mom and verify that the pills were hers, we taxpayers would not have had to pay for two felony drug arrests. But, why save taxpayers money? After all, can’t we just raise the sales tax another ½ cent?

It gets worse. The prosecutor’s are no better. The State charges Daniel with possession of alprazolam, and possession of hydrocodone, in spite of the fact that the drugs were in mom’s car, with mom’s name on the bottle. They know mom’s name and address, mom is now a witness in the criminal case, and mom testifies at trial that the prescriptions in her car and in her pill bottles, are, in fact, hers. Case closed, right? Wrong. Knowing all of this, the prosecutor presses forward, and the jury still finds Daniel guilty of possession of alprazolam, and possession of hydrocodone. Aside from the fact that this was a colossal waste of taxpayer money, what was the legal problem here?

The problem is that the jury was never told about the Prescription Defense. The prescription defense permits citizens to hold onto another person’s pills, so long as they have permission to do so. Once this prescription defense is asserted, the State must overcome the defense beyond every reasonable doubt–or the jury must find the person not guilty.

The State probably believed that Daniel’s admitted “pill problem” means that he is transporting his pill habit in mom’s pill bottles (though, he never admitted to what pills he had a problem with…). However, the officer conducted no tests to show the presence of these drugs in Daniel’s blood stream. Bottom line: Daniel should have won this case. Once mom testified that the pills were hers–and that her son had permission to possess them–the state must overcome these facts beyond every reasonable doubt. They did not do so. Even a confessed pill habit doesn’t overcome the prescription defense. Now, I have had the State overcome a prescription defense, because the state proved that the pills inside the pill bottles were not, in fact, the actual pills prescribed to the accused. Basically, the pills in my client’s bottle did not originate from the pharmacy in question. Proof came via laboratory analysis, by matching the lot number of the prescription (every prescription can be traced back to the manufacturer via pharmacy records) to the actual chemical content of the pills found in the bottle. Different lots sometimes have slight chemical variances, and a lab can detect these differences (even though the quantity of hydrocodone may remain at 5mg, and the acetaminophen may remain at 500mg, there are other aspects of the pill that can differ per production lots and that’s how you show the pills in the bottle were not the same as those prescribed). However, according to the facts in the appellate court’s opinion, the state did not present any evidence to overcome a prescription defense.

Even though Daniel’s criminal defense attorney presented a defense that should have guaranteed victory–the lawyer didn’t take that extra, crucial, step of giving the prescription defense instruction to the jury. In this case, the jury was only instructed to find Daniel guilty of possession of alprazolam and hydrocodone if: (1) he possessed the substance, (2) the substance was alprazolam, hydrocodone, marijuana, and (3) he had knowledge of the presence of the substance. With these instructions, the jury had little choice but to find him guilty.

Thankfully, the appellate court overturned the alprazolam and hydrocodone convictions, holding that, without a prescription defense instruction, there was no way for the jury to know they had the option to find him not guilty of the crime. Indeed, if the proper jury instruction was given, the only just result would have been not guilty. Of course, what does “just” matter to a jury? What do taxpayer dollars mean to an FHP officer that can’t make one phone call to clear this issue up? What do taxpayer dollars mean to a prosecutor who had every opportunity to verify mom’s prescriptions? Folks, your money is being wasted. This case represents several thousand taxpayer dollars that could have gone to the schools, teachers, and children.