Doctor Shopping Doesn’t Kill Prescription Defense

In case you haven’t watched the news in the past several years–Orlando is a hot bed for prescription drug abuse. Actually, it’s not just Orlando, it’s also most of neighboring Seminole County. And, where ever you find the abuse of drugs like oxycodone and xanax, you’re going to find trafficking arrests to go right along with it. In the end, it’s not just trafficking charges that addicts end up with, it’s also doctor shopping charges. The end result here is that folks who are addicted to Big Pharma’s prescription medications wind up with both a trafficking charge and a doctor shopping charge.

There’s a tug of war between the prescription defense to a trafficking charge, and doctor shopping. For example, if you have a “valid prescription” for oxycodone, said prescription is a complete defense to the trafficking charge–this is known as the “prescription defense”. But, when an addict “doctor shops” to obtain more and more prescriptions, does that invalidate these prescriptions? If doctor shopping makes the resulting prescriptions invalid, will the prescription defense work? Put another way, may the State accuse a citizen of doctor shopping in order to negate a prescription defense to the trafficking charge?

The answer is tricky, but our Florida courts examined this exact issue in Wagner v. State, 2012 WL 75107 (Fla. 4th DCA 2012). Wagner was convicted of trafficking in Oxycodone, possession of Xanax, withholding information from a practitioner (doctor shopping), and two counts of obtaining Oxycodone and Xanax by fraud. It was alleged that Wagner intended to sell the excess prescription drugs, so an undercover sting was conducted in which Wagner showed up to make the deal ans she was consequently arrested.

This is where it gets tricky. The trafficking case was overturned due to one simple change from the statute to the jury instruction. The law states that Wagner is guilty of trafficking in oxycodone if she possessed the drug, “unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription”. But, the judge permitted the following jury instruction: that Wagner is guilty of trafficking in oxycodone if she possessed the drug, “unless such controlled substance was lawfully obtained for a lawful purpose from a practitioner or pursuant to a valid prescription….”

See that phrase “for a lawful purpose”? Where did that come from? It’s NOT in the Florida statutes. We know that Wagner’s offer to sell his oxycodone was not a lawful purpose (he’s not a Big Pharmaceutical company, or a pharmacist). The court reasoned that “Wagner’s subsequent decision to sell the contents of his prescription did not affect the validity of the prescription. As such, the trial court’s jury instruction misstated the law, misled the jury, and negated Wagner’s only defense.” Id.

Thus, even if you get a prescription just to resell oxycodones for profit, such illegal intentions will not negate the prescription defense (it will get you a sale & delivery charge, of course, but for some reason the State in this case didn’t file such). The prescription defense is actually better off than it was before, because the Wagner court also held that a doctor shopping accusation will not prevent a defendant from using the prescription defense. The court noted that “[N]othing in either sections 499.03(2) or 893.13(7)(a)8., Florida Statutes, eliminates the valid prescription defense to trafficking or possession of a controlled substance if the prescription is obtained in violation of the doctor shopping statute. That may have been the intention of the Legislature, but we are constrained by the rules of statutory interpretation to follow the plain language of the statute.” Id.

There you have it. Another win for the good guys. In the meantime, let’s hope that our legislature will do something meaningful with their time, and get these pill addicts some help for their addiction–rather than more and more criminal statutes designed to put them in prison. As a taxpayer, it’s the least expensive way to handle addiction. Prison is expensive. And, as a bonus, drug treatment the morally correct thing to do. Of course, such logic has never made it into the legislature, but if enough of us wake up and smell the tax dollars leaving education–and heading to the Department of Corrections–maybe someone will make some changes. I’m done preaching now…..