Man to be retried for possessing Vicodin WITH a prescription

[shemp]

Freed man faces new trial in Vicodin case (http://blogs.tampabay.com/breakingnews/2007/08/freed-man-faces.html)

The Hillsborough State Attorney's Office has decided not to drop charges against Mark O'Hara, who was freed from prison after an appeals court said he deserved a new trial.

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. He refused plea agreements before trial that would have given him one to three years in prison. Instead, jurors heard from two doctors who said they had been treating O'Hara since 1990 for pain relating to car accidents and gout.

However, jurors were not told that it is legal to possess Vicodin with a prescription, which O'Hara had. He was convicted and sentenced to 25 years in prison for drug trafficking.

Using words like "absurd" and "ridiculous", a three-judge appeals court overturned the conviction in July and ordered a new trial.

This case is an example of the insanity of the drug laws in many states:

link (http://www.sptimes.com/2007/07/26/Hillsborough/Freed_man_still_in_li.shtml)

Prosecutors did not contend that O'Hara, who went to prison in the 1980s for cocaine trafficking, sold any of the 80 Vicodin pills he had been prescribed in the eight months before his arrest. Under the law, simply possessing the quantity of pills he had constitutes trafficking.

In other words, he wasn't using the Vicodin as fast as he was getting it from his doctor, so he had enough of it to fall afoul of Florida's law.

I have a prescription for Lorazepam, which is a Schedule IV drug under the federal Controlled Substances Act. I take this for occasional anxiety attacks, and with this prescription I get 30 pills. At the rate I take them, I only need about 30 pills per year. But my wife, who has had a heart attack, also has the same prescription. She takes them more frequently, maybe 50-60 per year. So at times we may have as many as 60 of these pills in our medicine cabinet. Wouldn't it be a wonderful thing if we went to jail for drug trafficking because we keep our prescribed controlled substance in the same house, in the same medicine cabinet?

At age 49, I don't think I'll live to see the day when the U.S. goverment ends this insane War on Drugs.

[Miss Anthrope]

Nothing I can say except that I'm disgusted.

[student23]

what do you expect. it's a Bush state.

[Miss Anthrope]

what do you expect. it's a Bush state.

While I'm not fond of any of the Bushes in government, this is a problem bigger than that. The Governor doesn't really make these laws. The blame it on "what do you expect, insert repbulican figurehead here" philosophy is a major over-simplification.

This kind of enforcement of quantity=intent to sell laws happens in nearly, if not all states.

[The Central Scrutinizer]

When having Vicodin with a prescription is outlawed, only outlaws will have Vicodin with a prescription.

[strathmeyer]

You can't convict someone of trafficking when they weren't really trafficking? Next thing a judge in Virginia is going to rule you can't be charge with reckless driving unless you were actually driving recklessly.

Why doesn't this have any affect on the other illogical trafficking laws?

[Bikewer]

Miss Anthrope is right, nearly every state spells out in statute how much of whatever constitutes "intent to distribute". "Manufacturing" may come in to play if there is evidence of items intended to facilitate sales; baggies, scales, etc.
I am forced to wonder about the "possession" portion of this case. In Missouri, the contraband item must be shown to be in the immediate area of control of the individual.
These drugs being in an unattended auto would not normally be sufficient (at least locally) to make a case for possession unless the individual was actually in the car.

[kiwimac]

It is an absurd law. Having a prescription for the drug should have been enough to get the case tossed. Mere possession of an item does not equal illegality.

[TheRedWorm]

This is just wrong.

[Esperdome]

Could it be that it was the small amount of marijuana that did him in? They had to make an example of him.

[shemp]

Could it be that it was the small amount of marijuana that did him in? They had to make an example of him.

He is being tried for "trafficking" in Vicodin. I do not know what became of marijuana charges, if any. Of course, my position on marijuana is legalize it.

[Esperdome]

My point being that without the marijuana being present, the Vicodin possession wouldn't have been considered a crime. His sin was possession of marijuana, and the Vicodin gave prosecutors a hammer to smash him with.

[Kevin_Lowe]

According to posters on fark.com, the issue is that in Florida established case law says that it is not a defence to a trafficking charge to have a prescription, and so juries cannot be informed that defendants have a prescription for the drugs they are accused of trafficking.

That is so ridiculous I would find it hard to believe, if it wasn't for all the other daft laws allegedly aimed at curbing drug use.

[Miss Anthrope]

According to posters on fark.com, the issue is that in Florida established case law says that it is not a defence to a trafficking charge to have a prescription, and so juries cannot be informed that defendants have a prescription for the drugs they are accused of trafficking.

That is so ridiculous I would find it hard to believe, if it wasn't for all the other daft laws allegedly aimed at curbing drug use.

That's so unbelievably unjust.

[MelBrooksfan]

You can't convict someone of trafficking when they weren't really trafficking? Next thing a judge in Virginia is going to rule you can't be charge with reckless driving unless you were actually driving recklessly.

Why doesn't this have any affect on the other illogical trafficking laws?

That's how most of them work. If you have greater than quantity X they nail you for intent to sell and the like.

[shecky]

Under the law, simply possessing the quantity of pills he had constitutes trafficking.

What Would Rush Limbaugh Do?

[ponderingturtle]

What Would Rush Limbaugh Do?

Finish all the pills in two days?

Also he might not have been storeing them up, if he was taking a few pills a day that would be less than a 30 day supply.

[timhau]

Was this a doctor who walks with a cane and who had been rude to the arresting officer earlier?

[Darth Rotor]

According to posters on fark.com, the issue is that in Florida established case law says that it is not a defence to a trafficking charge to have a prescription, and so juries cannot be informed that defendants have a prescription for the drugs they are accused of trafficking.

That is so ridiculous I would find it hard to believe, if it wasn't for all the other daft laws allegedly aimed at curbing drug use.
I share your disbelief.

This sort of energetic pursuit of the non threat, when the war on drugs had as its target the major distribution networks (at one time) who are well armed with lawyers, bankers, and accountants who help put up smoke screens is all to common a scenario. The Clinton era "Three Strikes and you are out" and "minimum sentencing" rules are two of the dumbest additions to the US legal system in my lifetime.

I am baffled that "having a prescription" is not admissable evidence, though having one might be voided as an excuse if the evidence could show that one was abusing a perscription and trafficking in a perscribed drug. That draconian response to people "possessing" rather than "trafficking" seems to me to need revocation.

DR

[SteveGrenard]

I think it is a matter of location. Geez, the guy had 58 Vicodin pills in a bread truck, not at home in the medicine chest. What was his intent in having so many Vicodin's available in a mobile vehicle? I'd like to hear his reason for having that many pills available to himself to be kept in what was probably his employer's vehicle. There is nothing about him just picking them up at the pharmacy but only that he had an RX. People do sell their prescription drugs and this is illegal.

[chulbert]

According to posters on fark.com, the issue is that in Florida established case law says that it is not a defence to a trafficking charge to have a prescription,...

This makes some sense. Just because you have a prescription doesn't mean you aren't trafficking the extra pills you don't need.

...and so juries cannot be informed that defendants have a prescription for the drugs they are accused of trafficking.

This I don't understand. While a prescription does not necessarily counter a trafficking charge, clearly it should be part of the defense.

That said, the man had almost two full refills (assuming a 30-day supply) of pain killers, not in his bathroom medicine cabinet, but in the vehicle of his employer: a delivery truck. I'm going to go out on a limb here and speculate they weren't exactly in the original bottles from the pharmacy either. Additionally, he had stored marijuana in the same vehicle.

I think there's something fishy about the whole situation, though fishy doesn't mean guilty.

That said, I'm not much of a fan of the war on drugs and I bet there are more effective uses of Florida tax dollars.

ETA - Curse your black heart and fast fingers, SteveGrenard.

[Darth Rotor]

Geez, the guy had 58 Vicodin pills in a bread truck, not at home in the medicine chest. What was his intent in having so many Vicodin's available in a mobile vehicle? I'd like to hear his reason for having that many pills available to himself to be kept in what was probably his employer's vehicle. There is nothing about him just picking them up at the pharmacy but only that he had an RX. People do sell their prescription drugs and this is illegal.

I don't see 25 years as anything remotely reasonable for small time selling, if that is in fact what he did, or was doing, nor for the small amount of dope.

A few months in the can, maybe a year for a repeat offender? I can see it.

My two cents.

DR

[corplinx]

According to posters on fark.com, the issue is that in Florida established case law says that it is not a defence to a trafficking charge to have a prescription, and so juries cannot be informed that defendants have a prescription for the drugs they are accused of trafficking.

That is so ridiculous I would find it hard to believe, if it wasn't for all the other daft laws allegedly aimed at curbing drug use.

Typically, doctor shoppers have a prescription for what the traffic. In fact, they have a ton of prescriptions. It sounds like they made the law to try to close off the defense doctor shoppers would take. However, the lack of prudence in the prosection of this man shows the flaw in the law. It trusts them to only bust/prosecute guilty people.

However, this man's story is well known and I doubt anything will come of this.

Its a case of good intentions/bad results. Doctor shoppers are flooding the streets with Xanax, Oxycontin, and other dangerous pills. The day they fix doctor shopping, a few weeks later the hospitals get filled with people having Xanax withdrawal seizures and hallucinations. The black market for pills is a nasty thing.

[SteveGrenard]

The long sentences for non-violent crimes such as small scale selling and the war on drugs (for adults) are another matter. I am talking about what probably made the police suspicious of him in the first place. After my heart surgery I was able to get out and around and was given a prescription for Vicodin, 60 tablets, which if you were really in pain you could finish in 10-days to two weeks. I didn't carry the rather bulky jar (these are large pills) around with me in my car. It was kept home in a safe place. I am not going to drive under the influence of an opiate so I would have no reason to take any of these pills with me, let alone as many as this guy had.

Also the account didn't say whether he had the Vicodin's in a legal
prescription jar or if he had transferred what was nearly an entire prescription to some other kind of container which would also raise suspicion if true.

[ponderingturtle]

That said, the man had almost two full refills (assuming a 30-day supply) of pain killers, not in his bathroom medicine cabinet, but in the vehicle of his employer: a delivery truck. I'm going to go out on a limb here and speculate they weren't exactly in the original bottles from the pharmacy either. Additionally, he had stored marijuana in the same vehicle.

So he should not carry his medication with him? And damn him if he has a perscription for more than one pill a day?

So if you have a perscription for say one pill every 12 hours and just take the bottle with you, you deserve a 20 year prison sentance for that.

[baron]

25 years? That's a crime in itself. The judge should be imprisoned, along with all those implicit in the sentencing, and I mean that.

[Darth Rotor]

The long sentences for non-violent crimes such as small scale selling and the war on drugs (for adults) are another matter. I am talking about what probably made the police suspicious of him in the first place. After my heart surgery I was able to get out and around and was given a prescription for Vicodin, 60 tablets, which if you were really in pain you could finish in 10-days to two weeks. I didn't carry the rather bulky jar (these are large pills) around with me in my car. It was kept home in a safe place. I am not going to drive under the influence of an opiate so I would have no reason to take any of these pills with me, let alone as many as this guy had.

Also the account didn't say whether he had the Vicodin's in a legal
prescription jar or if he had transferred what was nearly an entire prescription to some other kind of container which would also raise suspicion if true.
I see your point on "probable cause" for the "possession with intent to distribute. It is still up to the State to prove it, and the real problem, IMO, the accessries, are the doctors who acquiesce to being the connections. Of course, doctors have a variety of motivations for ensuring their patients are not in pain, so it isn't as simple as my sentence might imply.

DR

[Beerina]

I think it is a matter of location. Geez, the guy had 58 Vicodin pills in a bread truck, not at home in the medicine chest. What was his intent in having so many Vicodin's available in a mobile vehicle?

Some of my medicines are 3-a-days. This means when I get a fresh bottle, it's 90 pills.

If I travel somewhere, I take the entire bottle with me.

If this guy got his next month's supply without fully using them up, he could very well be in a similar boat. Just take the one bottle with you, end of story. Nobody sits there and thinks, gee, I only need 4 pills for the next day, so that's what I'll take in a special bottle.

In this particular case, I think:

1. The government should not be permitted to forbid introduction of evidence that he had a prescription for them. Isn't that what a defense is for?!?!? Whatever happened to the whole truth?

2. He could, of course, be doing a little small-time re-selling of his unused portion. However, if that is the case, the government should be required to demonstrate this via some sting type operation or other evidence, and not just presume quantity X is evidence of trafficking on the face of it.

[drkitten]

So he should not carry his medication with him?

While driving?

Um,.... will you think less of me if I say "no, he shoudn't"?

Hell, I'm not even allowed to have an empty can of beer in the car with me. I don't see why anyone in his right mind should drag a month's supply of a narcotic around with him.


So if you have a perscription for say one pill every 12 hours and just take the bottle with you, you deserve a 20 year prison sentance for that.

Only if the jury doesn't believe him. Just because he says he wasn't trafficking doesn't mean that he wasn't. If you find me sitting outside of your house in the middle of the night with a set of lock picks, are you going to take my word for it that, no, I'm not planning a burglary; I always walk around at night with burglary tools in my pockets?

[ponderingturtle]

While driving?

Um,.... will you think less of me if I say "no, he shoudn't"?

Hell, I'm not even allowed to have an empty can of beer in the car with me. I don't see why anyone in his right mind should drag a month's supply of a narcotic around with him.

This must make it difficult to legaly return beer cans for recycling.

So how should people get their medication home, walk I guess. And as he was not charged with operating a vehical under the influence.



Only if the jury doesn't believe him. Just because he says he wasn't trafficking doesn't mean that he wasn't. If you find me sitting outside of your house in the middle of the night with a set of lock picks, are you going to take my word for it that, no, I'm not planning a burglary; I always walk around at night with burglary tools in my pockets?

Look he had a couple of days supply for a serious addict, Rush could go through that in a weekend, so obviously rush should have been charged with trafficing because of the ammounts of drugs he was getting.

[strathmeyer]

That's how most of them work. If you have greater than quantity X they nail you for intent to sell and the like.

I'm sorry; I understand the laws and was unable to satirize my disbelief in a properly coherent way. By extreme disbelief, in fact, made me incoherent. I'm better now.

[chulbert]

So he should not carry his medication with him?

Vicodin? On a job that requires driving? No, I don't think so.

So if you have a perscription for say one pill every 12 hours and just take the bottle with you, you deserve a 20 year prison sentance for that.

No, I don't think he deserves 20 years of prison. However, I also doubt he was "just a man with his pain pills".

[pgwenthold]

No, I don't think he deserves 20 years of prison. However, I also doubt he was "just a man with his pain pills".


I tend to agree, but then again, isn't that for a jury to decide? And while I tend to think that the prescription doesn't mean much (it is perfectly possible to deal vicodin by getting a prescription) it is definately information that the defense should be allowed to present. Again, it is for the jury to determine whether it is relevent or not, and it should not get in the way of a good prosecution. IOW, I think the prosecutor should be able to prove trafficking beyond the level of mere possession. You and drkitten are correct. The case against him is not that he has Vicodin in his possession, but in a vehicle? Prescribed or not, that is not something that makes sense. But I repeat, that's for a jury to decide and pretty much irrelevent to the point.

[ponderingturtle]

Vicodin? On a job that requires driving? No, I don't think so.

Where is your evidence that it effects driving when taken in a manor perscribed by legitimate doctors?

I know that shortly after my mother came home from her double knee replacement, she would drive herself to rehab, and was certainly on narcotic pain killers.



No, I don't think he deserves 20 years of prison. However, I also doubt he was "just a man with his pain pills".

Evidence?

[Miss Anthrope]

I tend to agree, but then again, isn't that for a jury to decide? And while I tend to think that the prescription doesn't mean much (it is perfectly possible to deal vicodin by getting a prescription) it is definately information that the defense should be allowed to present. Again, it is for the jury to determine whether it is relevent or not, and it should not get in the way of a good prosecution. IOW, I think the prosecutor should be able to prove trafficking beyond the level of mere possession. You and drkitten are correct. The case against him is not that he has Vicodin in his possession, but in a vehicle? Prescribed or not, that is not something that makes sense. But I repeat, that's for a jury to decide and pretty much irrelevent to the point.

Agreed. The fact that he cannot introduce his prescription at all tells me the trial cannot be fair. Thus, I don't support his retrial. I know that's a position that can be criticized, but, it's where I stand.

[slingblade]

Because of my mom, I'm in a house full of morphine right now. It scares me a bit.

A friend of mine was charged with manslaughter, because when her husband died from cancer, she negelected to throw away all his medications. She didn't get rid of very much of his stuff; her grief was too fresh. One night, a friend came over, with a couple of young people in tow. At some point, one of the teens went to the bathroom, then wandered into the bedroom without permission, dug around, found the oxycontin, and took...I don't know how many; more than one. And he died.

IIRC, she was convicted. I don't know if she ever served any time, or got probation; I moved away and never heard. But I had talked to her many times during the whole mess. She was not only grieving two people, she was terrified. And frankly, she hadn't even thought about someone taking those pills, hadn't thought to throw them away.

It seemed to me more like the kid killed himself with stupidity. Apparently the law didn't see it that way.




BTW, Mom is doing fine. :)

[ponderingturtle]

I tend to agree, but then again, isn't that for a jury to decide? And while I tend to think that the prescription doesn't mean much (it is perfectly possible to deal vicodin by getting a prescription) it is definately information that the defense should be allowed to present. Again, it is for the jury to determine whether it is relevent or not, and it should not get in the way of a good prosecution. IOW, I think the prosecutor should be able to prove trafficking beyond the level of mere possession. You and drkitten are correct. The case against him is not that he has Vicodin in his possession, but in a vehicle? Prescribed or not, that is not something that makes sense. But I repeat, that's for a jury to decide and pretty much irrelevent to the point.

How can you support a trafficing charge when the only basis for it is the number of pills he had, and they are not an unreasonable ammount for a single 30 day perscription?

Remember folks this is what a serious addict like Rush would go through in a weekend, so it is not a massive ammount of the medication.

[Charlie Monoxide]

For the people that live in the US, keep reminding yourselves you live in the "freest" country in the world.

These "freedoms" end though, if "illegal/legal drugs" or perceived "terrorism" are involved ...

Charlie (the drugs laws are insane) Monoxide

[pgwenthold]

How can you support a trafficing charge when the only basis for it is the number of pills he had, and they are not an unreasonable ammount for a single 30 day perscription?

Remember folks this is what a serious addict like Rush would go through in a weekend, so it is not a massive ammount of the medication.

Did you miss this comment I made: "IOW, I think the prosecutor should be able to prove trafficking beyond the level of mere possession."

[ponderingturtle]

Did you miss this comment I made: "IOW, I think the prosecutor should be able to prove trafficking beyond the level of mere possession."

That is generaly based on the ammount of drug in possession, and in this case it was not even an ammount that is odd for a 30 days.

So I have not seen any evidence that at normal doses such pain medication would prevent people from driving. It is kind of like just because you have some alcohol in your system does not mean you are doing anything illegal to be driving.

[pgwenthold]

That is the case for the jury to decide.

You don't know that the charge is based _only_ on the number of pills he was carrying. In fact, others have pointed out that carrying that many Vicodin in a vehicle is evidential. Is it? I don't know, that is for the jury to hear.

The question isn't whether he is guilty or not. It's whether there is sufficient cause to arrest him (and my opinion on that is irrelevent, as he already has been arrested), and what information should the jury be allowed to hear.

If the prosecutor does not have enough evidence to prove beyond reasonable doubt, then he will get off.

[quixotecoyote]

You do realize he's already been convicted once because of prejudicial dug laws.

[pgwenthold]

You do realize he's already been convicted once because of prejudicial drug laws.

I don't know that, do you? You know why the jury convicted him? We shouldn't assume that it was _only_ because of the amount, as the turtle has claimed.

The "prejudicial" part that I see is that he was not allowed to provide evidence in his favor, and for that reason I am opposed to his conviction. However, again, we shouldn't assume that the verdict would come back differently if he were allowed to provide his prescription. It depends on the entire case, not just this tidbit. Could it make a difference? Absolutely, which is why it needs to be allowed. Does it have to make a difference? No. It depends on the entire case.

[quixotecoyote]

However, jurors were not told that it is legal to possess Vicodin with a prescription, which O'Hara had. He was convicted and sentenced to 25 years in prison for drug trafficking.

Jurors were not told what he was doing was legal.

They could get him on the pot, stupid as that is.

[ponderingturtle]

They did find partially smoked marijuana cigarettes and unmarked pill bottles in the truck. One bottle contained 58 hydrocodone pills, a trafficking amount under state law.

This time, police had no evidence that O'Hara sold or delivered any of the pills. But drug trafficking laws require only possession for an arrest.

Link (http://www.sptimes.com/2007/08/05/Hillsborough/After_2_years_in_pris.shtml)

Maybe they should wait outside of pharmacies and nab all the drug dealers coming out with their brand new perscriptions.

Looks like the prosecutors just charged him because they felt that they could lean on him and get him to accept a plea deal, thus giving them an additional conviction for their records.

Hmm

Checkver said that he prescribed O'Hara 40 hydrocodone in December 2003 and 40 more in May 2004, when O'Hara complained of anxiety and lower back pain.

The trial took less than six hours. Jurors convicted O'Hara of trafficking and marijuana possession.

But why was it illegal for O'Hara to have 58 pills if 80 had been prescribed to him in the eight months before his arrest?


Well it was more than one perscriptions worth, but it is still a rather small ammount of drugs.

[pgwenthold]

Jurors were not told what he was doing was legal.


No. Jurors were not told that one aspect of what they heard was legal, that he had legally acquired the drug by prescription.

You have no basis for claiming that "what he was doing was legal" given that is what the jury was charged with deciding: whether what he was doing was legal or not.

Now, would they have changed their view had they known that he had legally acquired the pills? Possibly, but not necessarily. It depends on what other evidence was presented.

I agree they should have been told that he had a prescription for Vicodine. They should have used that information along with everything else to make a decision. What that decision would be depends on what was in that "everything else."

[pgwenthold]

Link (http://www.sptimes.com/2007/08/05/Hillsborough/After_2_years_in_pris.shtml)

Maybe they should wait outside of pharmacies and nab all the drug dealers coming out with their brand new perscriptions.


Of course, that's not even close to what happened here. He's circling the parking lot at the airport, and claims he dropped off a friend, whose last name he doesn't know. Really good friends, they were, I guess.



Well it was more than one perscriptions worth, but it is still a rather small ammount of drugs.

How many are too many?

Maybe he is addicted. But doctor shopping is wrong, regardless of whether its him or Rush Limbaugh.

[ponderingturtle]

Of course, that's not even close to what happened here. He's circling the parking lot at the airport, and claims he dropped off a friend, whose last name he doesn't know. Really good friends, they were, I guess.

So you would not help someone out who's last name you did not know, good to know if someone around you needs a ride. I remember times my parents brought people home and I would be surprised if either they or I ever knew their last name.

So you must hang around with much more paranoid social groups than I do.




How many are too many?

Maybe he is addicted. But doctor shopping is wrong, regardless of whether its him or Rush Limbaugh.

The thing is that if he was doctor shopping they should be able to turn up more prescriptions than 2 in 6 months.

[pgwenthold]

So you would not help someone out who's last name you did not know, good to know if someone around you needs a ride.


I wouldn't call them a "friend" if I did.

[ponderingturtle]

I wouldn't call them a "friend" if I did.

Maybe he is a quaker.

But how else would you expect it to report him dropping someone off at the airport?

[chulbert]

Where is your evidence that it effects driving when taken in a manor perscribed by legitimate doctors?

"Vicodin may make you drowsy, less alert, or unable to function well physically. Do not drive a car, operate machinery, or perform any other potentially dangerous activities until you know how this drug affects you."

-- Sticker on the bottle of Vicodin in my medicine cabinet.

I know that shortly after my mother came home from her double knee replacement, she would drive herself to rehab, and was certainly on narcotic pain killers.

I respectfully submit that was unwise of your mother.

Evidence?

The evidence has already been pointed out above. To recap:

1) He had multiple types of drugs in his possession.
2) He had a large number of pills.
3) He had those drugs on the job.
4) Additionally, his job involved driving.
5) He almost certainly had not notified his employer that he was taking prescription narcotics.

None of the above is irrefutable or conclusive, but it is all evidence and it's more than enough to put some doubt in my mind.

[SteveGrenard]

I know that shortly after my mother came home from her double knee replacement, she would drive herself to rehab, and was certainly on narcotic pain killers.

I respectfully add my respectful advice that this was unwise not only because of the drugs in her system but the possible instability of her knees, one of which she needs to operate the brake and gas pedal if she drives an automatic. A stick shift would be worse.

[The Painter]

If the guy had just parked legally, none of this would have happened. Poor Bastard.


PS. You folks take a lot of drugs.

[Kevin_Lowe]

I think there's grounds for reasonable suspicion he was selling his drugs. I'm damn sure there's not proof beyond reasonably doubt, given that the drugs were legally obtained.

[ponderingturtle]

"Vicodin may make you drowsy, less alert, or unable to function well physically. Do not drive a car, operate machinery, or perform any other potentially dangerous activities until you know how this drug affects you."

-- Sticker on the bottle of Vicodin in my medicine cabinet.

Ah but it says until you know how it will effect you, it does not say that it is right out.




The evidence has already been pointed out above. To recap:

1) He had multiple types of drugs in his possession.
2) He had a large number of pills.
3) He had those drugs on the job.
4) Additionally, his job involved driving.
5) He almost certainly had not notified his employer that he was taking prescription narcotics.

None of the above is irrefutable or conclusive, but it is all evidence and it's more than enough to put some doubt in my mind.

He had it is a work related vehical, we do not know he was on the job.

[roger]

Let's see, he was prescribed 80 pills, and in 8 months disposed of, in one way or another, 22. That doesn't exactly sound like a dealer to me. Still, he was a fool to turn down the offer to accept one count of possession (I assume that was the MJ).

[pgwenthold]

I think there's grounds for reasonable suspicion he was selling his drugs. I'm damn sure there's not proof beyond reasonably doubt, given that the drugs were legally obtained.



All possibly true, but then again, a question for a jury.

[Cuddles]

Link (http://www.sptimes.com/2007/08/05/Hillsborough/After_2_years_in_pris.shtml)

Maybe they should wait outside of pharmacies and nab all the drug dealers coming out with their brand new perscriptions.

Their brand new, half-smoked prescriptions? Or their brand new prescriptions in unmarked bottles?

[ponderingturtle]

Their brand new, half-smoked prescriptions? Or their brand new prescriptions in unmarked bottles?

Either. Rember that it is only the ammount of the pills you have that matters, not that they where legaly aquired.

[Kevin_Lowe]

All possibly true, but then again, a question for a jury.

As I understand it, usually a case never even gets to trial if the prosecutor does not think they have at least a fair shot at proving guilt beyond a reasonable doubt.

So it's not meaningful to cop out of every question regarding evidence by saying "That's a question for a jury". If the prosecutor has no evidence beyond mere possession of legally obtained drugs then there's no way they are going to be able to prove true intent to distribute beyond a reasonable doubt.

The only way this prosecution ever made headway was by excluding relevant evidence from the jury.

[Sandy M]

That is bizarre, but typical. I get migraines. Some times they recur off and on for days. I carry in my purse at any given time a bottle of Vicodin (about 30 pills, my doc is conservative, but always renews the scrip) or Codeine/Tylenol; Imitrex (two injections) and Maxalt (dissolve under the tongue). When a real "good" migraine hits, I may end up taking 2 or 3 pills at a time, four hours or so apart. 58 pills would seem to me to be an average prescription and isn't going to last that long if there is chronic pain or something like persistent migraines. On the other hand, I may go months without a migraine and those 30 pills will be sitting there for quite some time. Glad I don't live in Florida.

On a personal level, I have found that Vicodin and/or Codeine/w/Tylenol WILL make me drowsy IF I have nothing to occupy me. If I have taken it and must continue to function (i.e., can't go and like down for a while), I find it has little or no effect on my alertness, and indeed, often I feel quite energetic when it has vanquished the migraine pain,

[drkitten]

So it's not meaningful to cop out of every question regarding evidence by saying "That's a question for a jury". If the prosecutor has no evidence beyond mere possession of legally obtained drugs then there's no way they are going to be able to prove true intent to distribute beyond a reasonable doubt.

I guess you missed post #51. I'm happy calling the set of facts (which as far as I can tell are relatively uncontroversial) from that post a prima facie case. If the defense simply stood up and said "we do not feel that there is a case to answer" in response to post #51, I would vote to convict.

As a general rule, if your own case is so weak that the best your lawyer can say is some handwaving about "reasonable doubt," then you've probably lost. There's a relevant legal maxim here -- "amateurs discuss the burden of proof; professionals discuss the theory of the case." The prosecution's theory is quite clear : the man was selling his drugs out of the delivery car, as evidenced by the fact that he was treating the drugs in what would be an incredibly irresponsible manner if he was legit. No other explanation covers the man's behavior. It's a simple, concise, and reasonable theory.

If the defense wants to succeed, then in a practical sense (to convince the jury), it will need to offer another, equally plausible and equally reasonable explanation and theory. Obviously, in the first trial, the man was handicapped somewhat by not being able to show his prescription, which is why he was convicted in the first place. But by that same token, this also means that a jury has already found the prosecution's case to be secure "beyond a reasonable doubt"; that they bought his theory.

What good would it actually do to show that this man has a prescription for these drugs? It's easy enough to show that some people deal drugs off prescription -- simply having a scrip doesn't mean that he wasn't dealing. And if he did have such a scrip, then that still doesn't provide the necessary explanation of why he was driving around with a three month supply of narcotics in his pocket.

Furthermore, why did the doc refill his prescription if he still had nearly half the bottle left from his first prescription? Why did he put nearly 60 pills into a unmarked bottle instead of leaving them in the original container? There's too many unanswered questions that the theory "I was just taking them as prescribed" doesn't address. Perhaps I would feel differently if I actually heard the story as he told it -- perhaps his lawyer can fill the holes. But as is, I find it very difficult to see any "reasonable doubt" even knowing that he had a scrip....

[quixotecoyote]

It's not just that he wasn't allowed to show his prescription. The jury was not told that it was legal with a prescription.

Two critical parts of the case were hidden from the jury:
1. The pills he had were legal with a prescription.
2. He had a prescription.

If those facts were admissible and I was his lawyer, I'd say the above paragraph, offer a few choice words on prosecutorial discretion and sit down.

[drkitten]

It's not just that he wasn't allowed to show his prescription. The jury was not told that it was legal with a prescription.

They shouldn't have been, because that isn't true. While it may be legal to possess the drugs, it's still not legal to traffic in them, no matter how many prescriptions you have.

Having a licence to carry burglary tools doesn't excuse my finding you in my apartment lobby at 2am with them....

[ponderingturtle]

They shouldn't have been, because that isn't true. While it may be legal to possess the drugs, it's still not legal to traffic in them, no matter how many prescriptions you have.

Having a licence to carry burglary tools doesn't excuse my finding you in my apartment lobby at 2am with them....

But the main evidence for his trafficing in them was the number of pills.

[drkitten]

But the main evidence for his trafficing in them was the number of pills.

... and the fact that he was carrying them in a bread truck and the fact that they were in an unmarked bottle and that they were next to his MJ supply and that he had no convincing explanation for his presence at the airport and the fact that he was getting the same prescriptions from multiple doctors and the fact that he didn't bother to tell his doctors that he was getting the same prescriptions several times over and he had no satisfactory explanation for why he needed another scrip for forty pills when he still had nearly twenty left over from the previous batch.

On, and the fact that he's already been convicted once of drug trafficking. Although this is really more relevant at sentencing than at trial.

[ponderingturtle]

... and the fact that he was carrying them in a bread truck and the fact that they were in an unmarked bottle and that they were next to his MJ supply and that he had no convincing explanation for his presence at the airport and the fact that he was getting the same prescriptions from multiple doctors and the fact that he didn't bother to tell his doctors that he was getting the same prescriptions several times over and he had no satisfactory explanation for why he needed another scrip for forty pills when he still had nearly twenty left over from the previous batch.

On, and the fact that he's already been convicted once of drug trafficking. Although this is really more relevant at sentencing than at trial.

But as his prescription was irrelevant, and it was the amount that made it a trafficking charge, that would all seem to be irrelevant.

Having 58 viocodin in your possession is all that is important.

And really if he can't move more than 22 pills in 6 months, he is a very very poor trafficker.

[quixotecoyote]

They shouldn't have been, because that isn't true. While it may be legal to possess the drugs, it's still not legal to traffic in them, no matter how many prescriptions you have. .

The possession of the pills translates to a trafficking charge if he hold them illegally. He held them legally, so he shouldn't have been charged with trafficking, let alone convicted.

eta: It really is that cut and dried.

[Kevin_Lowe]

... and the fact that he was carrying them in a bread truck and the fact that they were in an unmarked bottle and that they were next to his MJ supply and that he had no convincing explanation for his presence at the airport and the fact that he was getting the same prescriptions from multiple doctors and the fact that he didn't bother to tell his doctors that he was getting the same prescriptions several times over and he had no satisfactory explanation for why he needed another scrip for forty pills when he still had nearly twenty left over from the previous batch.

People carry their pills with them all the time. People smoke marijuana all the time without necessarily selling everything else in their medicine cabinet. His excuse for being at the airport was sketchy, but for pity's sake, I doubt a big-time international drug dealer was flying in to score 58 Vicodin tablets. You can't convict someone of whatever you like just because they are near an airport and don't have a watertight alibi.

As for multiple prescriptions and stocking up on the drug, it's a psychologically and physiologically addictive substance.

There's no way any sane person calls that mess proof beyond a reasonable doubt he dealt drugs, once they know that he obtained and possessed the pills legally.

[drkitten]

People carry their pills with them all the time. People smoke marijuana all the time without necessarily selling everything else in their medicine cabinet. His excuse for being at the airport was sketchy, but for pity's sake, I doubt a big-time international drug dealer was flying in to score 58 Vicodin tablets. You can't convict someone of whatever you like just because they are near an airport and don't have a watertight alibi.

Actually, I believe they did.

And that's part of the reason that the case was remanded for a new trial instead of simply being thrown out.


There's no way any sane person calls that mess proof beyond a reasonable doubt he dealt drugs, once they know that he obtained and possessed the pills legally.

On the contrary. I am sane; I know he obtained the pills via prescription; I do not know the legality of "doctor shopping" in Florida and would be interested in an expert opinion (in some jurisdictions, that constitutes fraud) -- and I have no problem stating that on the basis of the evidence presented in this thread, I do not consider there to be any reasonable doubt that he was illegally re-selling his prescriptions.

[drkitten]

The possession of the pills translates to a trafficking charge if he hold them illegally. He held them legally, so he shouldn't have been charged with trafficking, let alone convicted.

No. The possession of the pills and reselling them constitutes trafficking, no matter how he obtained them. I have no doubt, based on his other behavior, that he was illegally reselling his pills and therefore trafficking.

it really is that cut and dried. If you re-sell your pills, no matter how you obtained them, you are trafficking.

[drkitten]

But as his prescription was irrelevant, and it was the amount that made it a trafficking charge, that would all seem to be irrelevant.

No, actually, that's completely wrong. The amount was far from the only reason this case made it to trial in the first place. The prosecutors expected to treat him like a normal doctor-shopper (which is still illegal, but less so).

From the link above:


Prosecutors didn't expect, or want, to take O'Hara's case to trial, Dirks said. If O'Hara truly had pain management issues, a plea agreement seemed in order.

They offered O'Hara three years in prison if he would explain his prescription drug problem.

O'Hara turned them down.

Right before trial, Dirks said, he tried again. This time, he offered to reduce the charge to one count of drug possession and leave sentencing up to the judge. O'Hara could have received as little as probation, Dirks said.

or a little earlier (same link)

Part of a prosecutor's job is to distinguish between drug abusers and drug peddlers. Abusers are more likely to be shown leniency, especially if they expose their dealers.

Dirks said he still doesn't know which category O'Hara, 45, belongs in.

He was offered a chance to demonstrate himself to be a simple drug abuser -- something that, as far as I can tell, no rational person can dispute (otherwise, why "doctor shop", which is proven by the witness list). He didn't bother, or knew he couldn't.


Having 58 viocodin in your possession is all that is important.

No. If all he had was 58 Vicoden, it wouldn't have gone to trial. It wasn't supposed to in the first place. The only reason it went to trial at all was because he couldn't -- or wouldn't -- explain the rest of the loose ends away. Not to the satisfaction of the police, not to the satisfaction of the DA, and ultimately, not to the satisfaction of the jury.


And really if he can't move more than 22 pills in 6 months, he is a very very poor trafficker.

Or he didn't bother to get the other dozen doctors he uses to testify. That would have looked really good at the trial, wouldn't it. "I've been prescribed 5000 Vicodin over the past six months, and I've only got 58 left. See? I'm in serious pain."

[ponderingturtle]

No, actually, that's completely wrong. The amount was far from the only reason this case made it to trial in the first place. The prosecutors expected to treat him like a normal doctor-shopper (which is still illegal, but less so).

They couldn't turn up more than two prescriptions over 6 months with a total of 80 pills? What is your evidence given that 58 of the pills are accounted for that he was abusing the medication?


He was offered a chance to demonstrate himself to be a simple drug abuser -- something that, as far as I can tell, no rational person can dispute (otherwise, why "doctor shop", which is proven by the witness list). He didn't bother, or knew he couldn't.

Great so he has a chance to demonstrate something that he might not be to get a lower sentence for having drugs legally prescribed to him?



No. If all he had was 58 Vicoden, it wouldn't have gone to trial. It wasn't supposed to in the first place. The only reason it went to trial at all was because he couldn't -- or wouldn't -- explain the rest of the loose ends away. Not to the satisfaction of the police, not to the satisfaction of the DA, and ultimately, not to the satisfaction of the jury.

Yes he was supposed to be properly intimidated and plead to having medication that was prescribed to him. I am sure you would be happy to get just a few years in prison for having your own medication with you.



Or he didn't bother to get the other dozen doctors he uses to testify. That would have looked really good at the trial, wouldn't it. "I've been prescribed 5000 Vicodin over the past six months, and I've only got 58 left. See? I'm in serious pain."

Evidence? You are making a lot of assumptions with no evidence what so ever. You seem to be using a guilty unless innocent beyond a reasonable doubt.

[drkitten]

Great so he has a chance to demonstrate something that he might not be to get a lower sentence for having drugs legally prescribed to him?

If he has a legitimate excuse for doctor shopping, he can tell it to the police.

Given that I don't think there is a legimate excuse for doctor shopping, I'm not concerned.




Yes he was supposed to be properly intimidated and plead to having medication that was prescribed to him.

... that he obtained by fraud.

I am sure you would be happy to get just a few years in prison for having your own medication with you.

No, I would be deeply unhappy to have my fraud revealed to the world. But that doesn't excuse my committing the fraud in the first place.

You seem to be using a guilty unless innocent beyond a reasonable doubt.

Nothing that you've said in his defence is "reasonable." That's usually a prerequisite to establishing "reasonable doubt." Why didn't he just claim that space aliens had beamed the drugs into his truck? Why didn't he just claim that Jesus had appeared to him and turned his ham sandwich into a bottle of Vicodin? Both are more plausible than any scenario you've presented so far.

[Kevin_Lowe]

Nothing that you've said in his defence is "reasonable." That's usually a prerequisite to establishing "reasonable doubt." Why didn't he just claim that space aliens had beamed the drugs into his truck? Why didn't he just claim that Jesus had appeared to him and turned his ham sandwich into a bottle of Vicodin? Both are more plausible than any scenario you've presented so far.

I think maybe you are on something harder than Vicodin.

You have absolutely no evidence he ever had more than 80 Vicodin at a time, and no evidence the missing 22 pills went anywhere other than down the accused's piehole.

The only "evidence" you've got that he was dealing was that his story for why he was at the airport at the time was shaky. That's not evidence of anything.