By Aaron Delgado of Delgado & Romanik posted in Criminal Defense on Thursday, June 1, 2017.
Many clients come to us after they are arrested for Unlawful Possession of a Controlled Substance under Florida Statute § 893.13 - i.e. drug possession. Frequently, our clients are charged with a felony, and, with it, the possibility of up to five years in prison, for possession of a prescription drug for which they actually have a prescription! In the State of Florida, if you are arrested for possession of a prescription drug that you or a family member obtained through the use of a lawful prescription, you may have an affirmative defense that bars prosecution.
Unfortunately, many police officers do not know that there is no mandate in Florida that a prescription be transported in a prescription bottle. We have seen people arrested just because they had a pill in a bag instead of a bottle, which is no crime at all. However, the courts have found that in outlawing the possession of unlawfully obtained drugs, nowhere did the legislature determine that carrying a prescription in something other than a pill bottle is illegal. Precedential case law recognizes that people may use a Ziploc bag or a pill case or a pocket to transport otherwise lawful drugs.
Most people have been in a position to have possession of a prescription drug for another’s benefit. Frequently, a child or an elderly parent depends on someone else to transport and dispense medication. This is completely justified behavior and common sense should make it obvious that this behavior does not warrant criminal prosecution, and some Florida appellate court decisions agree. Unfortunately, not all law enforcement officers know that the prescription defense extends to controlled substances held by someone who is not prescribed the medication on behalf of someone who is.
Recently, we took on as a client a woman with absolutely no criminal history whatsoever. Unfortunately, that did not stop a local law enforcement agent from arresting her for possession of two pills in a prescription bottle - one of which matched the prescription on the bottle except for a minor inconsistency, and one of which was a pill she held in trust for her elderly mother-in-law for emergency use. Together, these charges carried a maximum of ten years in prison. Instead, we provided the state attorney’s office with prescriptions from her and her mother-in-law, an affidavit from the mother-in-law, and corroborating case law that made it clear that the prescription defense applies in this situation. About one week after retaining our services, both counts were dropped completely.
Of course, many times people who are arrested for drug possession do not have a valid prescription for what they are carrying. In that case, there are many other options that we may have to fight criminal charges, including suppression of evidence or other affirmative defenses. Every single client has a unique case which requires individualized attention and a thorough review.
Here at Delgado and Romanik, we have found success fighting unlawful possession charges using the prescription defense. The sooner we are hired, the sooner we can act, and the sooner we can act on your behalf, the better. If you were arrested for drug possession, call us now and let us get started on your defense.