US Pharm. 2010;35(3):38-41.
Have you ever entered your own vehicle and considered just what is inside of it? Is there anything that could get you in trouble if you were pulled over by the police for a traffic infraction? Are you sure about that? Before feeling safe, ask yourself, who recently drove your car? Was it your spouse, your teenage son or daughter, a friend, a valet parking attendant, or an employee making a delivery for your pharmacy? Do you know if any contraband might have been left inside? What follows are two cases showing how reckless behavior, or just plain bad luck, could end up causing more trouble than you could ever have imagined.
Case 1: An Unlucky Errand
A 26-year-old man, Steven, was living with his grandmother, Mamie, in Indianapolis, Indiana. He regularly used her car to run errands and did not own a vehicle himself. One day while riding together, the grandmother asked her grandson to stop at the pharmacy to pick up a refill of her medication. During this trip, Mamie noticed that she had five tablets left in the prescription vial and dumped the pills out into a cup holder in the center console of the car. She then handed the container to Steven so he could take it to the drugstore and obtain the refill. Steven and Mamie both testified that at the time of this occurrence, she never told her grandson what the medication was or what she was using it for and that he did not look at the prescription container to see the name of the medication. After they completed their other tasks, Steven dropped Mamie off at home and drove to the pharmacy.
While waiting for the prescription to be refilled, Steven bought himself something to drink. After picking up the medication, he went back to his grandmother’s car and went to set his drink in the cup holder. Seeing the five pills that Mamie had left there earlier in the day, he removed them so they would not get wet and put them into a netted pocket on the outside of his backpack, which was sitting on the passenger seat. Apparently, he then forgot about them.
The next evening, again while he was driving Mamie’s car around town with a friend (and with the backpack now in the back seat), a police officer pulled Steven over for failing to stop at a stop sign. As luck (or the absence thereof) would have it, the officer, while checking Steven’s driver’s license and registration, learned that his license had been suspended and that there was an outstanding warrant for his arrest. The other passenger in the car with Steven at the time did not have a valid driver’s license either. Accordingly, the police officer made arrangements to have the vehicle towed. Following standard procedures in these circumstances, the officer proceeded to inventory the contents of the vehicle. It was during this search that the five tablets in the backpack were discovered. Steven told the officer that they belonged to his grandmother and that he had intended to return them to her but had forgotten about them. He had possession of the tablets in his backpack for a total of about 30 hours.
The pills were identified as hydrocodone, and Steven was charged with a vehicular misdemeanor for driving on a suspended license and a felony count of possession of a controlled substance without legal authority. He did not post bail and spent the next 16 days in jail.
During a bench trial by the judge (without a jury), Steven testified as to the facts stated above. Mamie also appeared and explained that she had put the pills into the cup holder and also forgot about them when Steven handed her the prescription refill bag later in the evening. She told the judge that the pills were hers, that she did not intend to give them to Steven, that she regularly let Steven drive her car, and that he was driving it with her permission on the night he was stopped and apprehended. She also indicated that she had no recollection of telling Stephen what the medication was or what it contained. Her testimony indicated that she was not sure about the distinction between a prescription-only medication and a controlled substance or a narcotic and an opiate. For his part, Steven claimed he did not know what the pills in the cup holder were at the time, that he did not know they were a controlled substance, that he did not know the name of the medication, and that he did not pay any attention to the name of the drug on the prescription receipt when he picked up the refill for his grandmother. Curiously, the court record does not indicate whether Steven knew at the time of this incident that hydrocodone is a controlled substance. In hindsight, that seems like a relevant issue to whether he knowingly was in possession of a controlled substance without proper authority.
The judge found him guilty on both the felony possession of a controlled substance and misdemeanor charge of driving without a valid license. Steven was sentenced to 180 days in prison, with credit for time served and the remaining time suspended.
Steven appealed his convictions. After all, who would want a criminal conviction for narcotics possession on his record, especially if he felt he had made an innocent mistake of nothing more than forgetfulness? As to the controlled substance possession charge, he argued that there was insufficient evidence to convict him. The Indiana Court of Appeals denied his appeal.1
The statute in question states that a person who knowingly or intentionally possesses a controlled substance without authorization is guilty of a felony.2 There are stated exceptions that allow family members or others to pick up prescriptions for patients unable to do so for themselves. Specifically, a “recipient representative” is defined as “an individual to whom a controlled substance is dispensed if the recipient is unable to receive the controlled substance.”3 Another provision defines an “ultimate user” as “a person who lawfully possesses a controlled substance for the use of the person’s household.”4
This, claimed the defendant, creates a sort of “Good Samaritan” exclusion from criminal liability for those who are doing a favor for someone else. The problem with this argument is that there is no time limit inherent in the distinction of doing someone a favor or possessing the drugs for one’s own use or benefit. One could assert he was holding the pills for a week, a month, or even a year and still suggest he was just doing an errand. The court dismissed this argument because the statute under consideration does not address how long someone can be in possession of a controlled substance without violating the law. In other words, possession is possession irrespective of the time that the drugs are held by one person for the putative benefit of another. The court also noted that Steven was not convicted because he did not return Mamie’s prescription “quick enough”; he was convicted because the indisputable fact was that he was in possession of the drugs when he was caught.
The court used a very narrow interpretation of these provisions to uphold the conviction. It wrote that the grandson was not charged for having in his possession his grandmother’s prescription and failing to give it to her. Rather, he was charged with being in possession of the five hydrocodone pills that his grandmother emptied from a pill bottle into the cup holder and that he later put into his backpack. Without any explanation as to how he knew the pills were hydrocodone or that hydrocodone is a controlled substance, the court summarily concluded that the evidence was sufficient to show he was knowingly in possession of a controlled substance.
Analysis
Based only on the facts we are told in the Court of Appeals’ opinion, Steven got the short shrift of justice. There was no obvious evidence that he knew he was in possession of a controlled substance. Rather, the evidence showed that he was caught in possession of five pills that turned out to be a controlled substance. Maybe that is splitting hairs, but it seems to be a significant distinction. Of course, we were not in the courtroom and have no way to judge the credibility of the testimony of Steven or Mamie. Maybe 26-year-old men in Indianapolis are presumed to know what hydrocodone is and that the drug is a controlled substance. Maybe Steven was going to use the pills himself, share them with the friend in the car that night, or try to sell them. A very unscientific search of Internet sites (search “street price of hydrocodone”) reveals that each pill of hydrocodone sells for between $5 and $10—not much of a get-rich-quick scheme for a 26-year-old vehicleless man who lives with his grandmother. The only good thing to come out of this case it that Steven probably learned a very valuable lesson by taking his case up the justice system to the Indiana Court of Appeals—never leave drugs in your backpack. Hopefully, he learned not to drive on a suspended license as well.
Case 2: A Pharmacist’s Loose Pills
A Michigan pharmacist was convicted of possession of a controlled substance, operating a vehicle while visibly impaired, and possession of a firearm while under the influence of intoxicants. The guilty verdict was upheld by the Michigan Court of Appeals.5
At approximately 2 am on a rainy night in the summer, the passenger-side front end of the Jeep driven by the pharmacist collided with the driver’s-side back door of another car as it was going through an intersection on the border between Detroit and an adjacent suburb. The victim testified she was driving about 20 miles per hour (mph) because of the rain and dense fog when she entered the intersection with the right of way. She estimated the pharmacist’s vehicle was traveling 45 to 50 mph. After the collision, the pharmacist exited his Jeep and approached the other driver, asking why she had stopped in the middle of the road. She responded that she had not stopped.
When the police arrived at the scene of the accident, one officer noticed alcohol on the pharmacist’s breath. At no time during the investigation did he ever communicate to the police that he was a licensed pharmacist or that he owned his own pharmacy. The pharmacist denied that he had been drinking and said that he was just tired. Believing he may have been intoxicated by something other than alcohol, the police issued a citation for reckless driving and put him into a police car to arrange other transportation for him. While sitting in the back of the police car, the pharmacist told the officers that he had a concealed weapon permit and that there were two handguns in his vehicle. The police found one loaded gun in the center console of the front seat and another one in a locked safe under the passenger seat. While searching the center console an officer also found seven pills of different colors and shapes without any prescription or other vials to contain them.
The officer put the pills into evidence bags, returned to the police car, told the pharmacist about the pills they had found, and read him his “chemical rights.” He refused to have his blood drawn. The officers obtained a warrant to have a blood sample taken, and the pharmacist was transported to a local hospital. The search of the vehicle and arrest of the pharmacist took place at approximately 2 am, and his blood was drawn at 6 am.
Two white pills were later identified as Tylenol #4. The other pills were carisoprodol (Soma), trazodone, sildenafil (Viagra), diazepam (Valium), and alprazolam (Xanax). A warrant was obtained to take a blood sample from the pharmacist. The blood sample revealed significant amounts of alcohol, alprazolam, diazepam, carisoprodol codeine, paroxetine (Paxil), fluoxetine (Prozac), lidocaine, and the codeine metabolite norcodeine in his system.
The pharmacist was charged with possession of a controlled substance (codeine) and possession of a firearm while under the influence of intoxicants.6,7 He was not charged with the illegal possession of diazepam, alprazolam, or any of the other drugs found in his vehicle or identified in his blood.
The pharmacist testified that he had worked at his pharmacy the day of the accident and that he had been home for about 5 hours without consuming any alcohol or medications. He left his home at 11 pm to go to a bachelor party at a strip club in Detroit and arrived about midnight. He denied taking any pills at the party but admitted to having two cups of punch laced with alcohol and a half bottle of beer. He left the party about 2 am and did not feel lightheaded or intoxicated. He also testified that when he saw the other car in the intersection he slammed on the brakes but began skidding until the collision occurred.
He claimed he had no idea how the pills got into his car. He postulated that a friend he drove to a kidney dialysis center might have put the pills into the center console. That friend admitted carrying Tylenol with codeine with him on occasion, but it was always in a labeled vial. He never carried or took diazepam or alprazolam. The pharmacist also noted that his vehicle was driven by several other people and was used to deliver prescriptions to patient homes.
An officer from the state police laboratory testified that she could tell from the blood sample and tests performed on the pills found in the vehicle that the pharmacist was under the influence of intoxicants at the time of the accident. The pharmacist argued that it was a procedural error to admit this expert testimony because it unfairly told the jury that he was guilty of the crimes charged. The trial court judge and the Michigan Court of Appeals disagreed.
The pharmacist was sentenced to 18 months of probation running concurrently on each count of his convictions. His appeal to the Michigan Supreme Court was denied, thereby letting his convictions stand.8
At the time of this writing, the online Michigan Board of Pharmacy license verification database did not indicate that there was an open or pending formal complaint or any disciplinary action taken against the pharmacist based on his criminal conviction of possession of a controlled substance.9 Knowingly possessing a controlled substance in Michigan without legal authority is a criminal felony for which a pharmacist’s license can be sanctioned.10
Analysis
Pharmacists are not above the law just because we carry licenses for controlled substances. Unlawful possession of these medications can result in criminal penalties as well as administrative discipline. As demonstrated by this case, trying to pass the buck to someone else you allow to use your vehicle will not be a very useful defense. As health care professionals, pharmacists are held to the highest standards of care. Feigned ignorance will not excuse responsibility or liability.
Both of these stories should serve as reminders to think about what might be in your vehicle before you get behind the wheel. Unintentional or forgotten possession of a controlled substance, once discovered by the authorities, will be treated seriously, with the very real possibility of criminal felony charges. Excuses as to how the drugs got into your car will generally not be considered a valid defense to the charges. Be aware, and take care before you drive.
REFERENCES
1. Matheny v. Indiana, Slip Op No 49A02-0904-CR-358 (January 11, 2010), IN Ct App.
2. IN Code § 35-48-7(a).
3. IN Code § 35-48-7-7.
4. IN Code § 35-48-1-27.
5. Michigan v. Bacon, Slip Op No 282833 (May 21, 2009), 2009 Mich App Lexis 1116.
6. MCL§ 333.7403(2)(b)(ii).
7. MCL § 750.237(1)(a).
8. Michigan v. Bacon, 772 NW2d 690; 2009 Mich Lexis 2533.
9. Verify a license/registration. Michigan Department of Community Health. http://www.dleg.state.mi.us/
10. MCL § 333.7403.
To comment on this article, contact rdavidson@uspharmacist.com.
