New Twist in O'Hara Vicodin Case

[Felonious Skunk]

Seems that the state has prosecuted and penalized Mr. O'Hara using mainly the weight of acetaminophen and other fillers in his Vicodin pills. From his appeal, O'Hara v. Florida 2D05-5078:

...At the time of his arrest, O’Hara had 58 Vicodin tablets in his possession, but under the State’s theory he would have violated the trafficking law even if he had possessed far fewer. Section 893.135 establishes a three-year minimum mandatory prison term for possession of "4 grams or more, but less than 14 grams" of hydrocodone. Under the statute, when a controlled substance is mixed with another substance in a pill, the weight of the controlled substance is deemed to be the total weight of the mixture, "including the controlled substance and any other substance in the mixture." § 893.135. One prescription Vicodin tablet contains 5 milligrams of hydrocodone and 500 milligrams of acetaminophen, the drug sold under the brand name Tylenol. See Physicians' Drug Reference, 526 (59th ed., Thompson 2005). For purposes of the trafficking statute, then, each tablet would be deemed to contain 505 milligrams of the controlled substance. Therefore, to exceed the minimum drug trafficking threshold of four grams would require only eight of these tablets.

The dosage recommended by Vicodin’s manufacturer is one or two tablets every four to six hours, not to exceed eight per day. If we were to accept the State’s assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day’s worth of properly prescribed Vicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000. One of the doctors who appeared at O'Hara's trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State’s reasoning in this case, any patient who had the doctor’s prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000. See § 893.135 (specifying penalty for possessing 28 grams or more, but less than 30 kilograms).

Standing alone, that proposition is absurd. But it is even more so when considering that the unwitting patient’s criminal “culpability” would be less if only his doctor chose to prescribe his pain medication in another, more powerful, form. A Vicoprofen tablet contains 7.5 milligrams of hydrocodone, and its recommended dosage is one tablet every four to six hours to a maximum of five in 24 hours. Physicians' Drug Reference at 529, 531. It differs from Vicodin in two other notable ways. First: instead of acetaminophen, in Vicoprofen the hydrocodone is mixed with ibuprofen, the medication sold over the counter under the brand name Advil. Id. at 529. Second, and most important: whereas a Vicodin tablet weighs 505 milligrams, the total weight of a Vicoprofen tablet is only 207.5 milligrams.

As noted above, under the State’s position a patient who left the drug store with 60 validly prescribed Vicoden tablets would face a mininum mandatory prison term of 25 years and a fine of $500,000. But if the 60 tablets in his possession were Vicoprofen, his minimum mandatory punishments would be fully ten years fewer and $400,000 less. See § 893.135 (specifying penalty for possessing 14 grams or more, but less than 28 grams). This would be true notwithstanding that in the latter scenario the patient possessed the same number of tablets containing fifty percent more hydrocodone as in the former. For that matter, it is possible to illicitly possess as many as 19 Vicoprofen tablets without implicating the trafficking statute. But if the State is correct, a patient with only eight prescribed Vicoden tablets—fewer than half as many tablets containing less than a third as much hydrocodone—would be a drug trafficker subject to a mandatory minimum prison term of three years and a mandatory fine of $50,000. We are obliged by law to reject an interpretation of the statute that would lead to such ridiculous results. See Maddox, 923 So. 2d at 447; Holly, 450 So. 2d at 219; Doe, 948 So. 2d at 808.

From a serious drug law standpoint, this decision addresses the absurdity of carrier weight in drug cases. The counsels of clients incarcerated for LSD offenses would do well to follow the results of this case very closely, as there could be some major precedent-setting decisions.

Reputation Comments on this post:

Terrifying.

[hoodabudda]

Originally Posted by Felonious Skunk

Seems that the state has prosecuted and penalized Mr. O'Hara using mainly the weight of acetaminophen and other fillers in his Vicodin pills. From his appeal, O'Hara v. Florida 2D05-5078:

...At the time of his arrest, O’Hara had 58 Vicodin tablets in his possession, but under the State’s theory he would have violated the trafficking law even if he had possessed far fewer. Section 893.135 establishes a three-year minimum mandatory prison term for possession of "4 grams or more, but less than 14 grams" of hydrocodone. Under the statute, when a controlled substance is mixed with another substance in a pill, the weight of the controlled substance is deemed to be the total weight of the mixture, "including the controlled substance and any other substance in the mixture." § 893.135. One prescription Vicodin tablet contains 5 milligrams of hydrocodone and 500 milligrams of acetaminophen, the drug sold under the brand name Tylenol. See Physicians' Drug Reference, 526 (59th ed., Thompson 2005). For purposes of the trafficking statute, then, each tablet would be deemed to contain 505 milligrams of the controlled substance. Therefore, to exceed the minimum drug trafficking threshold of four grams would require only eight of these tablets.

The dosage recommended by Vicodin’s manufacturer is one or two tablets every four to six hours, not to exceed eight per day. If we were to accept the State’s assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day’s worth of properly prescribed Vicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000. One of the doctors who appeared at O'Hara's trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State’s reasoning in this case, any patient who had the doctor’s prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000. See § 893.135 (specifying penalty for possessing 28 grams or more, but less than 30 kilograms).

Standing alone, that proposition is absurd. But it is even more so when considering that the unwitting patient’s criminal “culpability” would be less if only his doctor chose to prescribe his pain medication in another, more powerful, form. A Vicoprofen tablet contains 7.5 milligrams of hydrocodone, and its recommended dosage is one tablet every four to six hours to a maximum of five in 24 hours. Physicians' Drug Reference at 529, 531. It differs from Vicodin in two other notable ways. First: instead of acetaminophen, in Vicoprofen the hydrocodone is mixed with ibuprofen, the medication sold over the counter under the brand name Advil. Id. at 529. Second, and most important: whereas a Vicodin tablet weighs 505 milligrams, the total weight of a Vicoprofen tablet is only 207.5 milligrams.

As noted above, under the State’s position a patient who left the drug store with 60 validly prescribed Vicoden tablets would face a mininum mandatory prison term of 25 years and a fine of $500,000. But if the 60 tablets in his possession were Vicoprofen, his minimum mandatory punishments would be fully ten years fewer and $400,000 less. See § 893.135 (specifying penalty for possessing 14 grams or more, but less than 28 grams). This would be true notwithstanding that in the latter scenario the patient possessed the same number of tablets containing fifty percent more hydrocodone as in the former. For that matter, it is possible to illicitly possess as many as 19 Vicoprofen tablets without implicating the trafficking statute. But if the State is correct, a patient with only eight prescribed Vicoden tablets—fewer than half as many tablets containing less than a third as much hydrocodone—would be a drug trafficker subject to a mandatory minimum prison term of three years and a mandatory fine of $50,000. We are obliged by law to reject an interpretation of the statute that would lead to such ridiculous results. See Maddox, 923 So. 2d at 447; Holly, 450 So. 2d at 219; Doe, 948 So. 2d at 808.

From a serious drug law standpoint, this decision addresses the absurdity of carrier weight in drug cases. The counsels of clients incarcerated for LSD offenses would do well to follow the results of this case very closely, as there could be some major precedent-setting decisions.

would be more than 505mg theres glues and binders and talc in their too

[Felonious Skunk]

^^^^ No doubt, was trying to keep it simple...

[hoodabudda]

so an oxy 160 would be nothing then it probably weighs 400mg at most but contains the opiate equivalent of 96ish 5/500apap vicodin/hydrocodone tabs.wow drug laws are fucked.

[Felonious Skunk]

I don't think people realize the significance of this decision. The practice of charging a person with one lb. of meth even if it's 10% pure is based on it being a "mixture." So someone with a 1/2 lb of pure meth is going to go down for less than the 1 lb mixture.

I know this issue has been before the courts with regard to LSD, but this may be the first time they've ruled on a licitly-manufactured pharmaceutical. And of course they consider the "carrier weight" fraction of Vicodin to be non-chargeable.

Here's hoping it's a precedent that can be applied to other drug cases where carrier weight accounts for the majority of a drug-POW's sentence.

If adding acetaminophen to the Vicodin weight is absurd, then they must rule that adding paper weight to LSD is also absurd. What logical argument could they use against it?

I realize logic is usually not a realistic expectation

[hoodabudda]

Originally Posted by Felonious Skunk

I don't think people realize the significance of this decision. The practice of charging a person with one lb. of meth even if it's 10% pure is based on it being a "mixture." So someone with a 1/2 lb of pure meth is going to go down for less than the 1 lb mixture.

I know this issue has been before the courts with regard to LSD, but this may be the first time they've ruled on a licitly-manufactured pharmaceutical. And of course they consider the "carrier weight" fraction of Vicodin to be non-chargeable.

Here's hoping it's a precedent that can be applied to other drug cases where carrier weight accounts for the majority of a drug-POW's sentence.

If adding acetaminophen to the Vicodin weight is absurd, then they must rule that adding paper weight to LSD is also absurd. What logical argument could they use against it?

I realize logic is usually not a realistic expectation

leagalize it all problem solved.