Is a Law Limiting Possession of Prescription Drugs Constitutional?

Pharmacy Times, January 2017 Oncology, Volume 83, Issue 1

The police arrested an intoxicated man who had passed out on someone else’s private property and possessed 2 vials containing prescription medications.

Issue of the Case

The police arrested an intoxicated man who had passed out on someone else’s private property and possessed 2 vials containing prescription medications. One of the vials was for someone else, resulting in criminal charges under the state’s controlled substances act because he was unlawfully in possession of a prescription drug. He challenged that criminal charge as violating his due process rights.

Facts of the Case

When arrested, the man first claimed he was holding the vial for a female friend. At the police station, he changed his story, saying he was holding the vial for a male friend, whom he named. There was a problem, though: the name the arrestee provided did not match the male patient’s name on the prescription vial.

When the patient whose name was on the vial was contacted, he said the medication may have been removed from his unlocked vehicle parked outside his home. An automobile belonging to the arrestee was found in the area, and there were reports that he had been seen in that area before the police arrived.

The arrestee/defendant was charged with the unlawful possession of a prescription drug under the following provision in the state’s controlled substances act: The following acts, or the failure to act, and the causing of any such act or failure are unlawful: The possession or use of a legend drug or a precursor by any person unless such person obtains such drug on the prescription or drug order of a practitioner.

The defendant’s attorney made a motion to dismiss the charges, claiming the state statute violated his client’s due process rights. That motion was denied, and the case was not dismissed. After some other motions were made and denied, the defendant entered a conditional plea of guilty. (In a conditional plea, the defendant enters it on the record, but reserves the right to ask an appellate court to review a ruling the trial court judge has made. If the appellate court agrees with the defendant that the trial court judge made an error, the defendant can withdraw the conditional guilty plea.)

The trial court imposed a penalty of incarceration for 180 days, with 174 days suspended. Further, the 6 days in jail could be satisfied by serving 16 hours in the sheriff’s labor program. In addition, a 2-year term of unsupervised probation and a monetary fine were assessed. All this was held in abeyance while the defendant sought appellate review of the trial court’s dismissal of his due process argument.

An appeal was filed with the state court of appeals in this western state, with the due process argument being the sole item for review. The defendant argued that the statute was unconstitutionally overbroad as written.

The Court's Ruling

The appellate court ruled that the statute was not unconstitutionally overbroad in its reach.

The Court's Reasoning

The defendant had advanced an argument that the statute limiting the legal possession of prescription drugs to the individual for whom they were prescribed was irrational and arbitrary, and made ordinary actions criminal violations. One example he cited was that the statute made it illegal for a spouse to pick up a prescription at a pharmacy or for a parent to get legend medication at a pharmacy for a sick child.

The court responded that the statute, as drafted, was reasonably related to the state government’s legitimate interest in stopping misuse and abuse of prescription drugs. The goal of criminalizing the acts specified in the statute was to protect the public health and welfare. The statute deems as a criminal act the possession of prescription drugs by any person unless that individual obtains the medication pursuant to a prescription or medication order of a practitioner.

Under this state statute, the prescription or medication order must be for the “ultimate user” of the pharmaceutical. Although “ultimate user” was not defined in the statute, the ordinary meaning of the term is the person intended, as named on a prescription, to use a medication. Accordingly, in the view of the appellate court, a person who picks up a prescription for another individual does not perform a criminal act. The plain language of the statute, and giving the ordinary meaning to the words used there, does not extend to making a criminal act out of retrieving prescription medication for someone else. Even if an individual were to view the wording of the statute as overly broad, it does not overreach to the extent of invading one’s due process rights.

Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.