Pharmacist Finds Drugs Hidden Behind Refrigerator

Author: Larry M. Simonsmeier, JD, RPh

Issue of the Case:

In this month's case, a New York court was asked whether a pharmacist who found hidden drugs could testify as to her opinion on the identity of the pills without proof from a chemical analysis?thus aiding in the defendant's conviction.

Facts of the Case:

While searching for a missing hair clip behind a refrigerator at work, the pharmacist found an unlabeled vial containing white pills. Upon closer examination and checking reference texts, the pharmacist determined that the pills were a generic version of Vicodin (hydrocodone). She returned the drugs to stock and reported the incident to her boss.

Later that day, a pharmacy intern admitted that he had taken the tablets and hidden them behind the refrigerator, explaining that he intended to give them to his father who suffered from back pain. The pharmacist called the police, and the intern was arrested.

Attorneys for the defendant intern made a motion to dismiss the case, arguing that the prosecutor's reliance on the pharmacist's identification of the tablets and the failure to obtain a chemical analysis warranted dismissal.

The Court's Ruling:

The pharmacist's testimony as to the identity of the drug was allowed, and the defendant was convicted of criminal possession of a controlled substance.

The Court's Reasoning:

The defendant relied on a New York statute, which provides that, in every felony case involving the possession of a dangerous drug, the agency shall perform an analysis of such drugs to confirm its identity. The court noted, however, that this statute applies to drugs seized by or in the custody of the police.

In this case, the tablets in question were never in the custody of the police because the pharmacist had returned them to stock. In reviewing the case law, the court concluded that the substance did not need to be physically produced at the trial. Instead, the nature and quantity of the drug could be proven circumstantially through identification by a witness.

The court held that the pharmacist could give a legally competent opinion when the data relied upon are the kind ordinarily accepted by experts in the field. The pharmacist testified that she relied on package insert information and reference journals in determining the chemical composition of the tablets. She further stated that reliance on such information is customary among pharmacists since it is not typical for them to conduct chemical analysis of drugs dispensed.

Finally, the pharmacist testified that the code on the tablets found behind the refrigerator was the same as the code on the stock of the generic version of Vicodin. Based on this comparison and the pharmacist's experience, it was ruled that the court properly permitted the pharmacist to testify as to the chemical composition of the substance to aid in the defendant's conviction.