The opioid crisis has placed a spotlight on crimes related to prescription drugs in Florida. Specifically, Florida’s Attorney General, prosecutors, and law enforcement have made it a priority to heavily penalize those who engage in the illegal possession of prescription drugs and the trafficking of prescription drugs. In fact, Florida law enables prosecutors to charge those with trafficking for having even a minuscule amount of prescription drugs in their possession.

“Trafficking” is not defined under Florida law however, it generally is understood to mean “dealing” or “trading” drugs. Trafficking drugs is charged as a first-degree felony in Florida, and the person who is placed under arrest for allegedly committing this crime is usually not eligible for a drug court diversion program, even if this is his or her first offense and they would benefit from drug treatment.

Should a person possess a prescription drug that he or she takes due to a drug addiction, this can be asserted as a defense to a trafficking charge, which may result in the prosecutor reducing the charge from drug trafficking to the simple possession of a controlled substance.

Aggregate Weight of the Drug and Any Mixture Containing the Drug

An individual can face serious drug-related charges such as trafficking because the prosecutor focuses upon the “aggregate weight” of the drug as well as any mixture containing the drug, rather than the actual weight of the drug, which may only be a fraction of its aggregate weight.

Case Law and Harsh Minimum Mandatory Sentencing in Florida

In Paey v. State, the District Court of Appeal of Florida, Second District, ruled that the imposition of a 25-year prison sentence for each of the accused’s seven oxycodone charges was not in violation of the cruel and unusual punishment clauses of the Eighth Amendment or the Florida Constitution. However, one of the judges in the case issued a dissenting opinion based upon four scenarios that illustrate the overzealous nature of Florida’s anti-drug trafficking law. These are as follows:

  • The absent-minded yet conscientious high school principal. A principal in a high school comes across a bag of cocaine on the school grounds. He takes it and then puts it in his desk with the intention of turning it over to police. However, he forgets to notify the police, and then soon thereafter, his secretary finds it and reports it to a school resource officer. Under this scenario, the principal, despite being innocent, could face a minimum mandatory sentence of three years in jail for having drugs in his possession. While the principal can assert the defense of temporary control for legal disposition, he will still be subject to prosecution under Florida law.
  • The overly worried wife. Suppose a woman is very worried about her husband’s habitual use of oxycodone. As a result, she takes 700 oxycodone pills away from him to prevent further usage of the drug. If she is caught with this amount of drugs in her possession, she could face a minimum mandatory prison sentence of 25 years for trafficking drugs.
  • The inadvertently addicted physician. Suppose a physician develops an addiction to pain medications following a skiing accident. As a result, he takes from a cabinet in his office twenty samples of oxycodone that were provided to him by a drug company representative for the distribution to his patients. The physician takes them home for his personal consumption. If the physician is convicted, the minimum mandatory prison sentence is 25 years.
  • Widows and cannabis. Five widows who live in retirement community share 25 pounds of cannabis that they keep in a locker on site. Two of them use the substance to obtain relief from nausea caused by cancer drugs. Two others use it to treat their glaucoma. The fifth widow also uses it to obtain relief from pain associated with arthritis. If these women are convicted, they face a minimum mandatory prison sentence of three years for the trafficking of cannabis.

“Fraudulent” Prescriptions and Due Process Implications

A typical scenario in Florida drug cases is when a pharmacist receives a false prescription. This occurs when an individual sends in a false prescription to the pharmacist, who tells the offender to return back to the store to pick it up in an hour. The pharmacist then contacts the physician who prescribed the drug only to discover that the prescription is fraudulent. As a result, the pharmacist then calls the police who tell her to fill the prescription anyway. The police then arrange a reverse-sting operation in which they wait in the parking lot while the offender picks up the medication. The police then follow the offender out of the parking lot and stop him for drug trafficking and presenting a fraudulent prescription. Police advised the pharmacist to fill the prescription since under Florida law, the charges are more serious under this scenario (meaning, the charges become more severe if the pharmacist fills the prescription), which includes a minimum mandatory prison sentence of fifteen years for the trafficking of a controlled substance.

Under this set of circumstances, a prosecutor can assert that the pharmacist acted illegally in filling the prescription that she knew was fraudulent. The pharmacist can also face professional discipline, even if she was acting pursuant to the advice of law enforcement.

In certain circumstances, an “informer” can be immune from prosecution for the possession or delivery of a controlled substance arising from the direction of law enforcement during a criminal investigation. Florida law, however, does not allow a pharmacist to act in violation of the law as well as their professional responsibilities for filling a prescription that he or she knows is false. Specifically, it is a crime in Florida to knowingly fill a prescription that is fraudulent; a pharmacist could lose his or her license under the above-referenced scenario.

Moreover, one can raise the argument that police broke the law by requesting that the pharmacist break the law in filling the fraudulent prescription. As such, the question then becomes: “do these illegal actions create a due process violation that can result in the dismissal of drug trafficking charges against the offender who provided the pharmacist with a fraudulent prescription?”

Courts in Florida have not directly addressed this issue, however, the case of State v. Williams stands for the proposition that due process mandates that drug trafficking charges be dismissed if the reverse-sting operation is so egregious and offensive to the “canons of decency and fairness which express the notions of justice.”

Contact Musca Law Today. Your Life and Your Liberty Depend Upon It!

Facing the prospects of a drug-related crime in Florida can be frightening, as is can drastically affect your life for years to come. When you work a seasoned Florida criminal defense attorney at Musca Law, he or she will help you to challenge your drug-related charges to the fullest extent of the law. Our firm’s attorneys are among The National Trial Lawyers – Top 100 Trial Lawyers, included in the 2012 Florida Super Lawyers® for criminal defense, and boast 10.0 Superb Avvo ratings. Our attorneys are skilled, experienced, tenacious, and relentless when it comes to defending our clients. To learn more about how Musca Law can make a difference for you, call (888) 484-5057 today.