Recent Developments for Defending Drug Possession Cases

Capable criminal defense lawyers know there are two major avenues for defending drug possession cases.  The first is to pursue traditional defenses such as investigating search and seizure issues, warrant issues, actual versus constructive possession issues and other similar traditional defenses.  The second major avenue, and one unfortunately oftentimes overlooked, is to fully investigate and develop sentencing phase “mitigation” evidence.  Effective mitigation in a criminal drug possession case, or in any criminal case for that matter, is oftentimes critical in avoiding a conviction and/or jail or prison time.

So what is mitigation evidence?  It is evidence of individual-specific circumstances generally beyond your control that significantly adversely affected your character and behavior which lead to your arrest.

Typical mitigation evidence in drug possession cases involves, among other things, showing your drug addiction arose from you initially being lawfully prescribed pain medications by a licensed physician for a medically documented injury, such as neck and/or back pain from an automobile or on-the-job accident.  The mitigation evidence generally demonstrates you were placed on an extended course of prescribed pain medications such that by the time your prescription had expired you had become addicted, through no fault of your own.  Faced with your addiction and the lack of any further prescriptions for the pain medication, your character and behavior were involuntarily altered to the extent you were left to satisfy your addiction on the “black market” or on the street.  This type of mitigation evidence often is rightfully considered by the State in arriving at a negotiated disposition of your case (in what is oftentimes referred to as “plea bargaining”) that spares you a formal felony drug possession conviction and/or jail or prison time.

Relatively recent developments in civil law have the potential further to help mitigate, or minimize, the impact of your drug possession case on your future, especially if you were in possession of OxyContin.   The first of those developments was in 2007 when the State of Kentucky sued the maker of OxyContin, Purdue Pharma.  The lawsuit alleged Purdue Pharma marketed the prescription painkiller as non-addictive because it was in the form of a 12 hour slow-release pill.  However, users soon discovered that crushing the pill caused the drug to lose its time release dosing and created an instant and intense high.  State officials said that practice subsequently led to a wave of addiction and increased medical costs across the state, particularly in eastern Kentucky where many coal miners were prescribed the drug for work-related injuries.  The case was settled in December 2015 with Purdue Pharma paying Kentucky $24 million, the bulk of which is to be used to pay for addiction treatment programs.  In a news release, the then Attorney General for the State of Kentucky stated “Purdue lit a fire of addiction with OxyContin that spread across this state, and Kentucky is still reeling from its effects.”

The second civil matter relevant to mitigating the effects of your arrest for possession of OxyContin is a very recent case wherein the City of Everett Washington is suing Purdue Pharma.  The lawsuit alleges Purdue Pharma knew the drug was being illegally trafficked to residents and did nothing to stop it. In a complaint in state Superior Court, city lawyers accused Purdue of gross negligence, creating a public nuisance and other misconduct and asserted the company should pay costs of handling the opioid crisis — a figure that the mayor said could run to tens of millions of dollars — as well as punitive damages.   While Purdue has previously been sued over its marketing of OxyContin to doctors and the drug’s risk of addiction to patients, Everett’s suit is the first to allege the company was aware of criminal distribution of the painkiller.

The civil litigation over OxyContin is based on the drug’s highly addictive qualities and the cost to society, and in particular local municipalities, to treat people who became addicted to the drug through no fault of their own.  The civil litigation underscores the notion addiction is an illness and most OxyContin addicts need treatment, not prison.

If you’re addicted to OxyContin and your addiction has caused you legal problems, including but not limited to an arrest for possession of a controlled substance, then call a Jacksonville criminal attorney familiar with how to mitigate the effects of your arrest to avoid you being convicted of a felony and going to jail or prison.

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