Guess the state!

[theweaselking]

Oldest news: Man sentenced to 25 years in prison for possession of the amount of Vicodin that his doctor prescribed to him.
Old news: Appeals court judge overturns conviction as completely absurd, notes that jury was never told that *vicodin possession is legal* if you have a prescription.
New news: Prosecutor appeals, refiles charges - because he REALLY wants to get this guy on "trafficking" charges for HAVING HIS OWN PRESCRIPTION.

Bonus points, from the apellate court's ruling:

It is impossible to fathom why the Legislature would endeavor to combat the more serious offense of drug trafficking by prescribing harsher penalties for that crime, and yet deprive law enforcement of an important weapon in that battle. Obviously, it would not; to do so would be unreasonable and ridiculous. This is yet another reason why we are obliged to reject the State's literal interpretation of the statute. See Maddox v. State, 923 So.2d 442, 447 (Fla.2006) (stating the courts will not sanction a statutory reading that would lead to unreasonable or ridiculous results); Holly, 450 So.2d at 219; Doe, 948 So.2d at 808.

The State's construction is no less unreasonable in the context of the case before us, involving the drug trafficking prosecution of a man who possessed hydrocodone that he obtained by prescription. At the time of his arrest, O'Hara had 58 Vicodin tablets in his possession, but under the State's theory he would have violated the trafficking law even if he had possessed far fewer. Section 893.135(1)(c)(1)(a) establishes a three-year minimum mandatory prison term for possession of “4 grams or more, but less than 14 grams” of hydrocodone. 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.” § 893.135(6). One prescription Vicodin tablet contains 5 milligrams of hydrocodone and 500 milligrams of acetaminophen, the drug sold under the brand name Tylenol. See Physicians' Drug Reference, 526 (59th ed., Thompson 2005). 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. FN2

FN2. Vicodin is produced in other forms and strengths. Vicodin ES tablets contain 7.5 milligrams of hydrocodone and 750 milligrams of acetaminophen. Physicians' Drug Reference at 527. Vicodin HP contains 10 milligrams of hydrocodone and 660 milligrams of acetaminophen. Id. at 528. Vicoprofen contains 7.5 milligrams of hydrocodone and 200 milligrams of ibuprofen. Id. at 529.

The dosage recommended by Vicodin's manufacturer is one or two tablets every four to six hours, not to exceed eight per day. Id. at 527. 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. See § 893.135(c)(1)(c) (specifying penalty for possessing 28 grams or more, but less than 30 kilograms).

Comments

[giza.livejournal.com]

> Appeals court judge overturns conviction as completely absurd, notes that
> jury was never told that *vicodin possession is legal* if you have a
> prescription.

I can't help but wonder why his original defense attorney failed to bring this up at trial. (I did not this angle discussed in the article)

[theweaselking.livejournal.com]

Judge's orders. The trial judge barred the defense from bringing up that vicodin possession is legal and that the defendant had a prescription.

[dreamshade.livejournal.com]

Okay, then the question becomes, what in the world were the circumstances for that? How do you bar the defense from stating that the accused may be innocent?

[theweaselking.livejournal.com]

Short version:

Law #1 bans vicodin, with excepts for a prescription.

Law #1 isn't viewed as strong enough. They want minimum sentences for dealers - so Law #2 is passed, to say that if you've got more than X amount, you're presumed to be trafficking, minimum sentence. Because the lawmakers are lazy, incompetent, and stupid (this is Florida, after all), Law #2 is worded in such a way that it doesn't operate as an ADDITION to Law #1. It references Law #1, but, despite their intent, the reference is not one that causes Law #2 to have the intended effect of operating from the same restrictions as Law #1.

Law #2 is now a separate law, with a separate crime of "having X amount of Vicodin, no exceptions". This is the State's argument. Since the exception is in Law #1 and he's not being charged with #1, he's being charged under #2, the prosecution argues that the defense cannot bring up his prescription or the legality of it under Law #1.

And the court accepted this argument.


Essentially, the defense and the appeal court say "Law #2 clearly MEANT to add additional sentencing for illegal possession, where illegal possession is defined in Law #1". The people who wrote the law agree with this.

The prosecution claims that "Law #2 DOES criminalise possession, regardless of law #1 and the intent of the writers of Law #2. As such, you go to jail now."

The original judge ruled that, regardless of how stupid it was, the prosecution was right, that's what the law says, and so protection against Law #1 does not protect against Law #2, and so your protection against Law #1 is not relevant and cannot be brought up in court.

The appeals court says that this is stupid.

[squizzlzilla.livejournal.com]

why hasn't the prosecutor been in some way punished for being a complete dick?

[dreamshade.livejournal.com]

Because it's Florida? Insert Jack Thompson reference here?

[rimrunner.livejournal.com]

I love it when judges get snarky.

Also from the article:

[neobitch.livejournal.com]

"Tampa Airport Police arrested O'Hara in 2004 after they found 58 Vicodin pills and a small amount of marijuana in his illegally parked and unattended bread truck."

Gosh, I wonder if the marijuana posession would cast the Vicodin tablets in a different light? [/gentle snark]

The case is absurd, but there was a bit more to it than your summary.

Re: Also from the article:

[theweaselking.livejournal.com]

But they're not charging him with anything involving the pot. They've charged him with trafficking the vicodin, and ignored the pot entirely.

Re: Also from the article:

[neobitch.livejournal.com]

Point.

It's absurd, either way. The post just felt a bit like you were trying to generate more of a ZOMG! reaction than it might have deserved, und zo I played Devil's Advocate.

Apologies. :)