CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2713539
...done if it had been prescribed. The State objected to the instruction and the court denied the request. We hold that O'Hara was entitled to the instruction, and, accordingly, we reverse his conviction and remand for a new trial. O'Hara contends that section
499.03(1), Florida Statutes (2004), and section
893.13(6) each provide a "prescription defense" to a charge of trafficking by possession under the drug trafficking statute, section
893.135. Section
499.03 is part of the chapter addressing Drug, Cosmetic, and Household Products....
...ll, dispense, or deliver, any habit-forming, toxic, harmful, . . . or legend drug as defined in s.
499.003(25), unless the possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug. *841 §
499.03(1) (emphasis supplied)....
...s of s.
893.13: . . ." §
893.135(1) (emphasis supplied). O'Hara argues that the emphasized language makes the above-quoted prescription defenses available to the defendant in a trafficking prosecution under section
893.135. The State maintains that section
499.03(1) is simply inapplicable and does not provide a defense to a charge of trafficking by possession....
...State,
875 So.2d 699, 700 (Fla. 4th DCA 2004) (discussing prescription defense in a case involving possession of a controlled substance that is not included in the trafficking statute). As we will discuss, the State is mistaken on both points. We begin with section
499.03. To ascertain whether section
499.03(1) might authorize a defense to trafficking by possession of hydrocodone requires an odyssey through several statutes....
...ed substance is defined in section
893.02(4) as "any substance named or described in Schedules I-V of s.
893.03." Hydrocodone is one of those substances. §
893.03(2)(a)(1)(j), (3)(c)(3)-(4). Therefore, hydrocodone is a "legend drug" for purposes of section
499.03(1)....
...ner licensed by law to prescribe the drug." Because the first subsection of the trafficking statute, section
893.135(1), excepts acts authorized under chapter 499 from the ambit of the described crimes, the authorized possession of hydrocodone under section
499.03(1) could provide a defense to O'Hara's trafficking charge. The State asserts that section
499.03(1) does not apply here because the statutes mentioned in the definitional subsection to which it refers, section
499.003(25), address topics other than criminal drug possession or drug trafficking....
...For example, *842 the State dismisses the possibility that the statute we discussed in the preceding paragraph, section
465.003(8), could have any bearing here because chapter 465 deals with the regulation of pharmacists. But this view is undermined by the fact that section
499.03(1) wholly exempts pharmacists from its operation....
...o the possession of such drugs by those persons or their agents or employees for such use: (a) A licensed pharmacist or any person under the licensed pharmacist's supervision while acting within the scope of the licensed pharmacist's practice; . . . § 499.03(1). Clearly, then, the persons subject to the proscription set forth in section 499.03(1), as well as its exception for valid prescriptions, must be persons other than pharmacists. [1] And this must be true even though one of the statutes to which the section refers for the definition of legend drugs deals with pharmacists. In other words, the fact that section 499.03 refers to a definitional statute contained in a chapter regulating pharmacists cannot be deemed to limit the application of section 499.03(1) to situations involving the regulation of pharmacists, because pharmacists have a blanket exemption from the operation of section 499.03(1) in any event. It would appear, then, that section 499.03(1) authorizes a person to possess a legend drug, including hydrocodone, if he obtained the drug by a valid prescription....
...As we have mentioned, there is also a prescription defense contained in the drug possession statute, section
893.13(6). It provides a defense to the charge of simple possession of "controlled substances," a category that includes hydrocodone but that is less inclusive than the "legend drugs" category that is the subject of section
499.03. Under one principle of statutory construction, it might be argued that the more specific statute, section
893.13, controls over the more general one, section
499.03....
...section
893.13 having nothing to do with penalties also would be excluded from the trafficking statute. Indeed, the effect of the State's interpretation of the trafficking statute would extend well beyond the prescription defense at issue here. Both section
499.03(1) and section
893.13(9) shield certain persons or entities who possess and deliver drugs, such as pharmacists, medical practitioners, hospitals, law enforcement officers, and the like, from the criminal prohibitions and penalties contained in the statutes. But in some instances the section
893.13 exemptions are broader than the ones contained in section
499.03. For example, section
499.03(1)(e) exempts "[a]n officer or employee of a federal, state, or local government," whereas section
893.13(9)(e) excludes "[o]fficers or employees of state, federal, or local governments acting in their official capacity only, or informers acting under their jurisdiction....
...Judging by its quick response to the public health ramifications of removing hydrocodone from Schedule III, it is unimaginable that the Legislature would endanger the public by imposing such an onerous burden as that advocated by the State in this case. To summarize, section
499.03 and section
893.13 allow a person to legally possess either a legend drug or a controlled substance when the drug was obtained pursuant to a valid prescription....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2011 WL 3300186
...In a motion to dismiss, defense counsel argued that the trafficking charges should be dismissed as to each defendant because both Knipp and Kiser possessed a valid prescription for Oxycodone which had been written by a licensed physician, and thus, came within the exclusion provided by section 499.03, Florida Statutes. The State responded that the charges should not be dismissed because where, as here, the prescriptions were obtained in violation of the doctor shopping statute, they are invalid and not within the exception of section 499.03....
...s alleged in the motion to dismiss." State v. Kalogeropolous,
758 So.2d 110, 111 (Fla.2000) (emphasis in original). A long-recognized defense to a charge of trafficking in prescription drugs is the defendant's possession of a valid prescription. See §
499.03, Florida Statutes (2008)....
...f a practitioner licensed by law to prescribe the drug. Id. (Emphasis added). The question then is whether section
893.13(7)(a)8., Florida Statutes (2008), also known as the "doctor shopping" statute, vitiates the valid prescription defense found in section
499.03....
...The State's argument rested on the legal issue of whether a violation of the doctor shopping statute vitiates the "valid prescription" defense to trafficking or possession of a controlled substance. We reject this argument because nothing 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....
...The trial court's ruling on the motions was also the same in each case, and the issues on appeal and cross-appeal are identical. [2] See Definitions of withhold, ONELOOK DICTIONARY SEARCH, http://www.onelook.com/?w=withhold & ls=a (last visited July 19, 2011). [3] The Legislature may well want to consider amending section
499.03 or
893.13(7)(a)8....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 14253, 2014 WL 4494237
...ely
apparent to the deputy. The trial court based its conclusion on the fact that the deputy
did not know whether Vinci had a prescription for Xanax. However, having a valid
prescription is a defense to possession of a controlled substance. See §§
499.03(1),
893.13(6)(a), Fla. Stat. (2012); O'Hara v. State,
964 So. 2d 839, 840-41 (Fla. 2d DCA
2007). Section
499.03(2) further provides that "possession of a drug under subsection
(1) by any person not exempted under this section, which drug is not properly labeled to
indicate that possession is by a valid prescription of a practitioner licensed b...
...There, the appellate court recognized that the deputy had "testified that in his
experience, 'many people' carry their prescription medications in plastic or other types
of bags, and that such practice 'is not uncommon.' " Id. at 969. Although the practice is
not uncommon, section 499.03(2) shows that the practice results in a prima facie case
of illegal possession of a controlled substance. The Smith case did not mention section
499.03(2)....
...The court observed that oxycodone can be possessed lawfully with a
prescription and that "it is not unusual for a traveler with a valid prescription to separate
a pill from a prescription bottle for later consumption." Id. The Deaton case also did not
mention section 499.03(2).
Based on section 499.03(2) and the facts relied upon by the trial court, we
determine that the trial court erred as a matter of law in determining that the deputy
-5-
illegally seized the prescription pill bottle and the pills in it....
