South Florida Criminal Law Blog

We've explained in previous posts that a person charged with possession of or trafficking in prescription drugs can fight the charges with proof a of a valid prescription. As the Fourth District Court of Appeal recently explained in Wagner v. State, the defense holds even when the prescription was gained by certain illegal means.

James Wagner was convicted of trafficking in Oxycodone, Xanax possession, withholding information from a practitioner and two separate counts of obtaining Oxycodone and Xanax by fraud. According to prosecutors, Wagner obtained prescriptions for the drugs from two physicians - doctors Terrero and Doldan - in the summer of 2007. Evidence presented at trial indicated that Doldan prescribed Wagner Roxicodone, Xanax, and a bottle of Oxydose in late July, while Terrero prescribed him Oxycodone and Xanax about 15 days later.

Wagner signed forms for the prescriptions from Dr. Terrero stating that he had not received a narcotic drug prescription from any other doctor. It is unlawful in Florida for a person receiving a prescription for a controlled substance to withhold from the prescribing doctor information about similar prescriptions issued in the last 30 days.

Wagner was arrested after allegedly setting up a deal to sell certain prescription drugs to a confidential police informant. During a search of his car, officers found four bottles of Oxycodone and Xanax, each of which Wagner had obtained with prescriptions from Dr. Terrero.

The trial court denied Wagner's motion for acquittal and, after closing arguments, instructed the jury on the "valid prescription" defense. Under Section 893.13(6)(a) Florida Statutes (2007), a person is not guilty of possession of a controlled substance where the substance was "lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice." In its instructions to the jury, however, the trial court said the prescription must also be "lawfully obtained for a lawful purpose."

On appeal, the Fourth District reversed the decision, ruling that the trial court's "valid prescription" defense instructions were erroneous. In Knipp v. State, the Fourth District previously explained that a person who obtains a prescription by withholding information from the prescribing doctor in violation of state law is nevertheless considered to have a "valid prescription" for purposes of the defense. While the person can be prosecuted for obtaining the drugs by unlawful means, he or she is not necessarily guilty of unlawful possession or trafficking of the drugs.

Continue reading "Florida Court Explains Prescription Defense in Oxycodone, Xanax Case - Wagner v. State" »

In Dieujuste v. State, Florida's Fourth District Court of Appeal explains that a person's presence at the scene of a crime is not enough to find the person guilty of criminal conspiracy.

Betsy Dieujuste was convicted of conspiracy to traffic in oxycodone with co-defendants Junior Julien and Lincoln Jackson. At trial, it was revealed that Delray Beach police officer Edward McCabe was working undercover when he bought 16 oxycodone pills from David Levine. McCabe later contacted Levine again, seeking to buy another 50 pills. He went to Levine's apartment and was introduced to Sarah Billett. McCabe gave $700 to Levine, who handed it to Billett.

Outside the apartment, Billett approached a black car, registered to Dieujuste and driven by Junior Julien. Lincoln Jackson was a passenger in the car. Julien got out of the car and handed pills to Billett in exchange for the money. Delray Beach police officers observing the transaction also noticed a third person in the back of the car, who was later identified as Dieujuste. Billett returned to the apartment and handed 46 oxycodone pills to McCabe.

The black car drove off and stopped one block away, where Julien exited and drove off in another vehicle. Dieujuste got behind the wheel of the black car and was stopped and arrested shortly thereafter. The arresting officers found $400 in Dieujuste's purse, matching the money originally given to McCabe. They also found a prescription pill bottle with Dieujuste's name on it and containing 54 oxycodone pills. Later tests were unclear as to whether the pills came from the same batch as those given to McCabe.

Dieujuste testified that the $400 was rent money owed to her by her live-in boyfriend. The boyfriend had told Dieujuste to get the money from Julien, who owed money to the boyfriend. She further testified Julien asked her to drive him to get money that was owed to Julien. She said she did not know what Julien did when he left the car or how he got the money, $400 of which he then gave to Dieujuste.

Continue reading "Florida Court Reverses Conspiracy Conviction in Oxycodone Trafficking Case - Dieujuste v. State" »