Twenty five year sentence for possession of drugs legally prescribed? Weird....

A healthy sense of skepticism is required when clicking around on the Internet.

Thus it was with a suspicious eye that I viewed a September 9 story on Chuck Shepherd's News of the Weird which claimed:

Until a July Florida appeals court ruling, Mark O'Hara, 45, had been in prison for two years of a 25-year mandatory-minimum for trafficking in hydrocodone, based solely on the 58 tablets found in his possession in 2004, even though his supply had been lawfully prescribed by a physician. The state attorney in Tampa had pointed out that Florida law did not mention a "prescription" defense to trafficking, and even though O'Hara had lined up a doctor and a pharmacist to testify, the jury wasn't allowed to consider the issue. After the appeals court called the case "absurd" and ordered a new trial with the prescription evidence allowed, the state attorney still refused to drop the case.

Now this seemed a bit far-fetched.

Imagine my surprise then when, checking out the story on Westlaw (subscription required), I found O'Hara v. State, --- So.2d ----, 2007 WL 2042821 (Fla.App. 2 Dist. 7/18/07).

Mark O'Hara had 58 Vicodin tablets on him when he was arrested. Vicodin contains some hydrocodone. O'Hara presented evidence that the medication was legally prescribed for "chronic inflammatory joint disease and from injuries he had sustained in an automobile accident." However, his trial attorney apparently failed to preserve the argument that "the evidence established that he possessed the tablets legally." Fortunately for Mr. O'Hara, his trial counsel did "preserve the second issue on appeal by asking the court to instruct the jury that it was not illegal to possess hydrocodone if it had been prescribed." (2007 WL 2042821 at *1.)

Although the Florida court did in fact call the State's construction of the relevant statutes "absurd," it did not laugh the case against O'Hara out of court: The bottom line is that there was an explicit prescription exemption in the possession statute but not in the trafficking statute. Of course, if one is going to sell drugs, whether he acquires his inventory in a street corner transaction or via a seemingly legitimate prescription is really irrelevant, isn't it?

But one ordinarily thinks of a trafficker as one who has a large supply of an illegal drug. The problem was that possession of relatively small amounts of the proscribed (not prescribed, proscribed) substance could alone violate the Florida trafficking statute. The Florida court explained, "Under the statute, when a controlled substance is mixed with another substance in a pill, the weight of the controlled substance is deemed to be the total weight of the mixture, 'including the controlled substance and any other substance in the mixture.'... One prescription Vicodin tablet contains 5 milligrams of hydrocodone and 500 milligrams of acetaminophen, the drug sold under the brand name Tylenol.... For purposes of the trafficking statute, then, each tablet would be deemed to contain 505 milligrams of the controlled substance. Therefore, to exceed the minimum drug trafficking threshold of four grams would require only eight of these tablets." (2007 WL 2042821 at *5.)

And this, in the final analysis, was why there had to be a prescription exception to the trafficking statute, too (2007 WL 2042821 at *5-6):

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....

Standing alone, that proposition is absurd. But it is even more so when considering that the unwitting patient's criminal "culpability" would be less if only his doctor chose to prescribe his pain medication in another, more powerful, form. A Vicoprofen tablet contains 7.5 milligrams of hydrocodone, and its recommended dosage is one tablet every four to six hours to a maximum of five in 24 hours.

Mr. O'Hara's troubles may not be over, however. The Florida court reversed O'Hara's conviction, but remanded for a new trial.

An August 21 article in St. Petersburg Times confirms that the local prosecutor intends to retry O'Hara. Sounds weird to me.