2ND DCA REVERSES TRAFFICKING CONVICTION AND 25 YEAR MINIMUM MANDATORY SENTENCE FOR FAILURE TO INSTRUCT JURY ON THE PRESCRIPTION DEFENSE.
O'HARA v. STATE, 2D05-5078 (Fla.App. 2 Dist. 7-18-2007)
This why prosecutors have a bad rap. They have only themselves to blame for publicly advocating absurd positions that could devastate a person’s life.
O’Hara was convicted for trafficking in vicodin by possessing 58 tablets of the pain killer. At his trial, he presented evidence that physicians had prescribed the medication for pain he suffered from a chronic inflammatory joint disease and from injuries he had sustained in an automobile accident. Two separate Florida Statues each provide that possessing a valid prescription is an exception to the prohibition of possessing the drug. (Sections 499.03(1) and 893.13(6). However, the trafficking statute 893.135 does not explicitly contain the “prescription defense” and the trial judge refused to give the jurors a defense requested instruction.
In granting a new trial, the 2nd DCA noted that The drug trafficking statute, section 893.135 contains no express language setting forth a prescription defense. However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: "Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:. . ." § 893.135(1)
The court called the prosecution's position on appeal "absurd":
The State's construction is no less unreasonable in the context of the case before us, involving the drug trafficking prosecution of a man who possessed hydrocodone that he obtained by prescription. At the time of his arrest, O'Hara had 58 Vicodin tablets in his possession, but under the State's theory he would have violated the trafficking law even if he had possessed far fewer. ... The dosage recommended by Vicodin's manufacturer is one or two tablets every four to six hours, not to exceed eight per day. If we were to accept the State's assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day's worth of properly prescribed Vicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000.
One of the doctors who appeared at O'Hara's trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State's reasoning in this case, any patient who had the doctor's prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000.
What bothers us is this: what kind of human being actively works to put a fellow (ill) human being in prison for filling a validly issued prescription for a needed medication? This is the type of “see no evil” bureaucratic robotic thought that one would expect to see in communist China.
25 years is more than a quarter of a person’s life! Just how did those prosecutors feel when they went home that night knowing they put a man in prison until 2030 for possessing drugs prescrbed by his doctor? How do these people sleep at night issuing this kind of devastating “justice’?
This kind of activity does not drive us to be a defense attorney. It drives us from the practice of law. Who would want to participate in a system of justice that produces these kinds of results, and engenders prosecutors to argue for absurd results on appeal?
It just makes us sick to think there are people like this with law degrees and entrusted by the State of Florida with enforcing our laws.
Some days, we just think “to hell with it all.”