May 10, 2010
Recently a client came to my office who had been arrested for possession of a controlled substance because he possessed them in a container which was not the original bottle in which the pills were dispensed at the pharmacy.
I expect to be able to convince the prosecutor, and if necessary, the Judge, that this was not a valid charge under Florida law given the fact that the client does have a valid prescription for the pills he possessed at the time of his arrest.
This issue was decided in a Pinellas County case which occurred in 1984 which involved Florida Statute 893.13(2)(a)(7) which at that time did in fact make it a crime to possess prescription drugs in a “generic” container which was not issued by the pharmacy. In Walker v. State 444 So.2nd 1137 (Fla 2nd DCA 1984), the Second District upheld the Pinellas County Judge who had ruled that , “because the statute criminalized activity which was otherwise inherently innocent” , that the statute was unconstitutional.
While the law is now clear, please accept a word of caution in carrying numerous prescription drugs in a similar “generic” container. As all are probably now aware, there has been renewed emphasis placed upon the enforcement of drug laws concerning the improper use (and illegal sale) of powerful prescription medications such as roxycodone and oxycontin.
Should it be necessary for you to possess any quantity of these or similar medications, I suggest that as a practical matter you also carry the pharmacy issued bottle or a copy of your prescription. This precaution, while not now legally required, could save you the embarrassment and expense of an arrest ( however unjustified) as my current client has learned.
Of course this pre-supposes that the investigating officer had the right to stop and/or search your person in the first place, but I shall address those issues in a future entry..