Possession of Oxycodone Gets Overturned Based Upon the Prescription Defense

IMG_0251.JPGThere are more prescription drug arrests than ever before–primarily involving possession of oxycodone or hydrocodone. No, I don’t have stats to back that up, but you can just hear me now and believe me later. While there are many contributing factors to this record breaking arrest rate, the one factor near and dear to my heart is law enforcement’s poor handling of the situation.

The police have little motivation to do any sort of “investigation” when it comes to arrests for possession of a prescription medication. If you don’t have a prescription label on the bottle–you’re going to jail. Gee, that’s some investigation officer, good use of the Bachelor’s in Criminal Justice. For the oxycodone patient, it’s a vicious cycle. Oxycodone users don’t want to walk around with a labelled prescription bottle that advertises “valuable pills inside”, folks who leave their oxy labels on the bottle are the same sort of folks that leave their purse sitting on the front seat of their unlocked car. Sure, you can do it, but why risk people knowing what’s inside? To make matters worse, law enforcement is often too lazy to follow up on a citizen’s claim that the pills are possessed legally. I hate to be the one to remind folks that the good ‘ol days were actually pretty good when it came to police investigatory skills–I seem to recall a time when cops would actually investigate crimes. A novel concept, right? Investigations today are limited to fictional depictions like ABC’s Castle, or NCIS. But once upon a time, investigations actually existed.

Why won’t officers confronted with a citizen claiming a valid prescription simply make a few phone calls and ask a few questions? Many of these officers have bachelor’s degrees in criminal justice, while officers in years past had no such degrees but their investigative skills would run circles around the college cops of today. Apparently, it’s just easier to make one more drug arrest than to conduct an investigation. Ok, I’m done blibber blabbing. Here’s a real life example of what I’m talking about.

In Romanyuk v. State, Ms. Romanyuk was charged with trafficking in oxycodone 4 grams or more, but she was only convicted of possession of a controlled substance (basically, possession of oxycodone). 141 So. 3d 749 (Fla. 2d DCA 2014) She was sentenced to thirty months in prison. Yes, you heard me. Don’t pretend this drug war isn’t costing us money. Don’t pretend that lazy law enforcement’s lack of investigation doesn’t cost everybody time and money.

The facts are simple. Oxycodone pills were found when Ms. Romanyuk’s purse after her car was searched because her friend/passenger was caught drug dealing. She explained to the officer that she was holding the pills for her husband. She claimed her husband had a valid prescription. How long would it take to verify this, thirty seconds?

It is perfectly legal to hold someone else’s pills–especially your spouse’s pills–so long as you have their permission to do so (otherwise it’s theft, of course). When you are arrested for legally holding someone else’s valid prescription, you’re gonna need the prescription defense. And that’s just what happened here, sort of. Ms. Romanyuk took her case to a jury trial, and “sought to introduce into evidence a printout of a pharmacy record of the prescription transactions and receipts attached to the husband’s prescription bags.” Id. at 750.

How this case got to a jury is beyond me, but I’ve met a few prosecutors who either (1) don’t believe the prescription defense exists, or (2) never held prescriptions for a loved one that would abuse the meds if left in their possession, or (3) love wasting tax payer dollars on trials that will pump up their ego, or (4) refuse to drop a prescription defense case in order to call the bluff of a frightened citizen facing a jury trial. Let’s face it, the prosecutors have the upper hand here, because few citizens want to risk going to trial. After all, look what happened to Ms. Romanyuk–three years prison on a possession charge.

When Ms. Romanyuk sought to introduce the pharmacy printouts (again, how did this thing get to trial?), the judge refused to allow them in. “The trial court ruled that they were inadmissible without a pharmacy employee introducing them as business records.” Id. at 751. Something funky is going on here, because if Ms. Romanyuk picked up these prescriptions on behalf of her husband, she could testify that she received certain paperwork in the ordinary course of that transaction. That being said, maybe she could not have admitted the ‘historical’ pharmacy printouts, but the individual receipts that clearly provide evidence of a valid prescription should have been admissible. But no, the court would not allow any of it. So much for getting to the truth. But wait, it gets worse.

When Ms. Romanyuk was denied the ability to introduce the pharmacy printouts, she then wanted to tell the jury all about her husband’s valid prescription for oxycodone. Nope. Judge refused to allow her to testify to that. Oh, but, the judge “did allow Ms. Romanyuk to testify and trial counsel to argue that Ms. Romanyuk frequently picked up these pills from the pharmacy for her husband and often saw him taking them.” Id. Hum. Is a jury going to buy testimony that tap dances around someone coming out and proclaiming that the husband had a valid prescription? No, the jury convicted because they never heard these magic words. They never heard a lot of things, actually. Never saw a lot of pharmacy printouts that they should have seen, and so forth and so on.

Naturally, when it came time to instruct the jury on the law, the defense attorney requested the prescription defense jury instruction. The prescription defense was Ms. Romanyuk’s only defense. And you’ve probably figured out by now that this judge was not going to let the jury hear this instruction. Instruction denied. And that, my friends, was the final straw for the appellate court. This conviction was overturned because of this judge’s failure to give the prescription defense jury instruction. Conviction thrown out, and sent back for a brand new trial.

Unfortunately, it is my guess that the new trial will go back in front of the same judge that made the numerous bad rulings listed above. I’m a bit surprised the appellate court didn’t provide further instructions regarding all of the other viable evidence and testimony that was kept out erroneously. I’m no psychic, but I bet Ms. Romanyuk will have a pharmacy employee testify at the new trial. And maybe, if the marriage is still intact, I bet Ms. Romanyuk will have her husband testify at the new trial. As Howard Jones would say, Things Can Only Get Better.

And yes, by the time I finished writing this, I checked the Charlotte County Clerk of Court’s website, and when the appellate court’s opinion came back late last year, the prosecutor dropped all charges (nolle prosequi, as it’s called). Congrats.

PIC: my office guard dog Sammie