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Tag Archives: loritab

The term “drug trafficking” is heavily used in today’s criminal justice system.  While the word “trafficking” means to “move from one place to another” or to “trade or deal in a certain type,” Florida Statutes have simply defined trafficking as possession of a large amount of certain controlled substances.  The implication being that, at certain amounts, the notion that one intended to use all of the substance for personal use is highly implausible.

Many Americans have prescriptions for medications.  Some of these medications are pain-management medications that are commonly bought and sold in the black market.  So what happens when a person has a prescription for trafficking amounts of a pain management medication?  According to the First District Court of Appeal, a jury is allowed to hear evidence of the so called “prescription defense” and decide the truth of that defense on their own.

In McCoy v. State (Case No. 1D09-5819, decided December 21, 2010), the defendants were on trial for possessing a trafficking amount of Lorcet.  The defendants asserted that they had prescriptions for this medication and that they were legally entitled to possess it for the purposes prescribed to them. The State presented contradictory evidence and the Judge refused to allow the jury to hear a crucial jury instruction: that if they had a valid prescription for the drugs, they cannot be convicted of trafficking.  The First DCA held that this was error.
Affirmative defenses are a fundamental principle in our courts.  The notion is that a person admits that they committed an act but claims they had a good reason to do so.  Self-defense is the most common: “yeah, I shot him, but he was breaking into my home and pointed a gun at me.”  The burden is always on the accused to prove their defense, as long as the State establishes that the act was committed in the first place.

The “prescription defense,” as the Court calls it, is similar.  Once the State established that the defendants possessed a trafficking amount of the pills, the burden was on the defendants to prove that they had a valid prescription at the time.  Once they presented this evidence, it was up to the jury to decide the validity of their claim.  In refusing to instruct the jury that they should acquit the defendants if they find evidence of their prescription to be credible, the Court committed reversible error.

Prescription drug crimes, prescription fraud, and trafficking statutes are rapidly evolving areas of the law.  If you are faced with drug trafficking, don’t face it alone.  There may be affirmative defenses to your case.  Visit my website at http://www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer