Prescription Drug Crime Defenses

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 What are Prescription Drugs?

Prescription drugs are those medications that are sold to a person only at the direction of a licensed physician. In this they are different from over-the-counter medications, such as aspirin, which people can buy freely without a prescription.

A person is legally prohibited from possessing a prescription drug without a valid prescription from a licensed physician. If a prescription was obtained through fraud or from an illicit pill mill, then possession of the drug is illegal.

What are Some Common Prescription Drug Crimes?

There are a number of crimes that involve prescription drugs. It is unlawful for anyone in legal possession of prescription drugs to sell them. So, for example, while it may be legal for a person to possess drugs lawfully prescribed for them by a licensed physician, it is illegal to sell the same drugs to another person. If a person knowingly sells drugs legally prescribed for them to another person who does not have a valid prescription, the person can be charged with the crime of possession for sale of a controlled substance.

A charge of possession with intent to sell is possible regardless of the amount of drugs involved. In other words, even if a person possesses only a relatively small quantity, the charge of possession with intent to sell is possible. In the state of California, the charge of possession with intent to sell narcotics is a felony. In California, the sentence will depend on the amount of the drugs the perpetrator possessed; possession of a greater amount will be punished more severely than possession of a relatively small amount.

Also, in some states, the transportation of controlled substances is illegal. While laws that criminalize the transportation of controlled substances are aimed at people engaged in trafficking of illegal narcotics, these laws do not require a large-scale operation for the charge to be made. So a person can be charged if they are engaged in illegally transporting prescription drugs for which they do not have a prescription.

In some states the sale or transportation of a controlled substance is a felony offense. Keep in mind that a controlled substance is any drug for which a prescription is required or a drug which cannot be possessed legally under any circumstances, e.g. heroin or cocaine.

If a person is in possession of a controlled substance and does not have a prescription from a licensed physician, they can be charged. It is also possible to be charged with a federal crime if they are accused of transporting drugs across state lines.

In most states it is also a crime to obtain a prescription from a licensed physician by fraud. This crime is sometimes known as “doctor shopping.” Individuals can be charged with this offense if they:

  • Obtain or attempt to obtain a prescribed medication from a licensed physician through either fraud, deceit, misrepresentation or the concealment of a material fact;
  • Make a false statement in a prescription, record, report, or order;
  • Falsely represent themselves to be a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse or physician’s assistant for the purpose of obtaining a controlled substance;
  • Attach a label that is forged or contains false information to a package containing controlled substances;
  • Tamper with the label of a prescription drug;
  • Steal prescription slips;
  • Forge a doctor’s signature on a prescription slip;
  • Illegally use someone else’s prescription;
  • Pose as someone else in order to obtain their prescription.

And finally in most states, laws against driving under the influence of drugs or alcohol can apply to a person driving while under the influence of legally prescribed drugs, if the drug impairs a person’s ability to drive.

There are a wide variety of prescription drugs; unlike over-the-counter drugs, prescription drugs are distributed in doctors’ offices or surgical facilities, nursing homes, rehabilitation facilities, hospitals and pharmacies pursuant to a doctor’s prescription, which often contains special instructions for the patient to prevent injury or to enhance their effectiveness.

What are the Penalties for Prescription Drug Crimes?

Prescription drug crimes can be classified as either misdemeanor or felony crimes. Misdemeanor charges are usually reserved for minor prescription drug crimes, such as possession of a small amount for personal use. These types of charges may result in consequences such as fines and a short period in a county jail, usually up to one year.

Felony prescription drug crimes can involve more serious conduct, such as possession of a large amount with the intent to distribute the illegal drugs, or manufacturing prescription drugs illegally in large amounts. These types of crimes will likely result in much larger fines, and longer sentences in a prison, not a jail. The charges will usually involve confiscation of the drugs as well as confiscation of any paraphernalia, money, and properties associated with the drug operations.

What is the Unwitting Possession Defense?

This is a drug crime defense that is available when a person is in actual possession of the prescription drug, but did not actually know that their possession was illegal. The defense exists because a person needs to know that they are in possession of the drug illegally.

An example of unwitting possession is when a person gives the defendant a bag to hold. If the person does not know the bag contains prescription drugs, and they do not possess the required knowledge to be guilty of illegal possession.

Another example is if the drugs are left in the person’s vehicle and later discovered during a traffic stop. The person may not be found guilty because they were completely unaware of the presence of the prescription drugs.

What is the Lack of Possession Defense?

A defense based on the Lack of possession means the perpetrator did not have actual control over the prescription drug. The foundation of any prescription drug charge is actual possession. For example, if the perpetrator shared possession or occupancy of the space inside a vehicle or house with a group of other people, the prosecutor would have to show that the alleged perpetrator alone had possession of the prescription drug and not some other person who shared the space.

So, for example, the prosecution could show that the prescription drugs were actually in the exclusive possession of the perpetrator in a personal locker in their bedroom, so any other person occupying the shared area could not have possessed the drugs.

However, If narcotics are found in a person’s car or in their home, or otherwise in a place that is with the person’s “dominion and control,” the person can be charged with constructive possession of the drugs. Legally, this is the same as if the person were holding the drugs in their own hands when police found them. Conviction may require a higher burden of proof for the prosecutor. The prosecutor would have to show the drugs belonged to the alleged perpetrator, but this can be done. In a case such as this, a person would be well advised to consult an experienced drug lawyer in order to assess the prosecution’s case and any available defenses.

Can I Use the Illegal Search and Seizure Defense?

The Fourth Amendment to the U.S. Constitution forbids the police from searching a person’s home without a search warrant unless the search falls within one of the recognized exceptions to the requirement that the police have a valid warrant.

The following searches are the exceptions to the warrant requirement:

  • Consent searches: if the person who owns or is in possession of a space consents to the search, then it is generally considered to be legal;
  • Motor vehicle searches: generally, the police need a warrant to search a car, however there are exceptions to this rule; if the owner or person in possession gives consent, then a search is allowed; if a police officer has probable cause to believe that there is evidence of a crime in the vehicle, then the officer may search it; or, if an officer reasonably believes that a search is necessary for their own protection, because, for example, a weapon might be hidden in the car, then the police may search the vehicle.
  • Evidence in plain view: the police can seize evidence that is in plain view;
  • Exigent circumstances: police may conduct a search and seize evidence if immediate action is required, e.g. someone is trying to destroy the evidence;
  • Border searches: searches at the national borders, including searches of vehicles, do not require a warrant or even probable cause;
  • Other: certain other situations as defined by case law.

If the police have seized illegal prescription drugs found in the course of an illegal search, a defense attorney could use that fact to suppress the evidence of the prescription drugs in court. As a practical matter, this would defeat the prosecution’s case.

What is the Duress Defense?

In some cases, it may be a defense that the person was under duress at the time of the crime. This means that the person was under threat of force or violence at the time they committed the acts that constitute the crime. For example, the duress defense might be available to a person who was held at gunpoint and forced to carry, possess, sell, or trade illegal prescription drugs.

Here, the person might not be found guilty of the crime, since they committed the crime in order to prevent the loss of their life or to prevent serious harm from happening to them. These types of cases can sometimes involve multiple defendants, and can often involve multiple offenses as well, which would be covered by the defense.

Should I Discuss Prescription Drug Crime Defenses with a Drug Lawyer?

There are several ways in which the illegal handling of prescription drugs can lead to a criminal charge. Prescription drug crimes can be serious; an experienced drug lawyer will be able to help you determine which defense might be available to you. The attorney will also be able to fight the charges and possibly get them dismissed or reduced.

State laws may vary regarding prescription drug crimes, but an attorney can provide advice and guidance in all phases of your case. You will get the best possible result with an experienced drug lawyer representing your interests.

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