Persecuted Pills

Fake felonies in Florida

Radley Balko from the November 2007 issue

In 2004 police in Tampa, Florida, found 58 Vicodin pills and a misdemeanor amount of marijuana in an illegally parked bread truck. Prosecutors charged the driver, 45-year-old Mark O’Hara, with felony drug distribution—not for the pot but for the Vicodin. Under Florida law, mere possession of a given weight of a controlled substance can bring distribution charges, even if, as was the case with O’Hara, there’s no evidence the defendant sold or gave away any pills.

In O’Hara’s case, the charge was even odder: He had a prescription for the pills.

At his trial, two doctors testified that they had been treating O’Hara since the early 1990s for pain related to gout and an automobile accident. But prosecutors insisted that Florida law does not allow for a “prescription defense” to drug charges, a strange claim that, if true, would make every resident of Florida in possession of prescription painkillers a felonious drug dealer. Nevertheless, the trial judge agreed with prosecutors and refused to allow O’Hara to admit his prescription into evidence. The jury convicted O’Hara, and he was sentenced to 25 years in prison.

In July a state appeals court threw out the conviction, calling it “ridiculous” and describing the prosecutors’ claim that there is “no prescription defense” in Florida “absurd.” O’Hara, who had already served two years in prison, was released a week later.

Unfortunately, O’Hara’s legal troubles aren’t over. Despite the rebuke from the state appeals court, prosecutors announced in August that they plan to try O’Hara again on the same charges.