Here is my favorite part of the 2009 Sacramento Auto Show: The CHP booth had the above pill box as a give-a-way. I immediately asked the officer working the booth if this could be considered entrapment. She said something about Aleve. So I asked her about prescrition meds. She ignored my comments. She didn't even respond after that. See, in California there is a law, 4060 B&P, stating it is illegal to possess prescription medications without a prescription. The meds should stay in the prescription bottle, which shows the person they are prescribed to, the prescriber, and the correct dosage information. If prescription meds are found in one of these "daily pill organizers" and there is no sign of a prescription bottle anywhere, law enforcement can use that as evidence of no prescription, and they may arrest the person holding this sort of pill container, sighting 4060 B&P.
Tricky CHiPs.
False. 4060 BP only states that the medication must have been prescribed to you, not that you must carry the prescription. Mere lack of possession of your prescription is not enough for an arrest (although it maybe for a detention with proper/sufficient articulation). Arrest can be made only after probably cause has been established to show that no prescription exists. To arrest for this section takes some good investigative work and cooberating evidence such as an admission that no prescription exits. See attached section below. In no way is the pill container entrapment. That might explain the CHP officer's reaction to your statement lol :P
ReplyDelete4060. No person shall possess any controlled substance, except that
furnished to a person upon the prescription of a physician, dentist,
podiatrist, optometrist, veterinarian, or naturopathic doctor
pursuant to Section 3640.7, or furnished pursuant to a drug order
issued by a certified nurse-midwife pursuant to Section 2746.51, a
nurse practitioner pursuant to Section 2836.1, a physician assistant
pursuant to Section 3502.1, a naturopathic doctor pursuant to Section
3640.5, or a pharmacist pursuant to either subparagraph (D) of
paragraph (4) of, or clause (iv) of subparagraph (A) of paragraph (5)
of, subdivision (a) of Section 4052. This section shall not apply to
the possession of any controlled substance by a manufacturer,
wholesaler, pharmacy, pharmacist, physician, podiatrist, dentist,
optometrist, veterinarian, naturopathic doctor, certified
nurse-midwife, nurse practitioner, or physician assistant, when in
stock in containers correctly labeled with the name and address of
the supplier or producer.
Nothing in this section authorizes a certified nurse-midwife, a
nurse practitioner, a physician assistant, or a naturopathic doctor,
to order his or her own stock of dangerous drugs and devices.
Wrong. CHP has arrested for this. 6 months and $2000 max, but you can't transport prescription meds around without proof of a prescription.
ReplyDeleteNow that I've thought a little more about this, having written my original response at 5:30ish this morning via my phone, I want to modify it.
ReplyDeleteJarrett, you are right about it not stating the prescription has to be in the bottle, but the burden of proof that a prescription exists is on the person carrying the container. CHP has arrested on this in Placer County. I remember being so mad they did because the lady they arrested reminded me of my aunt and they brought her to jail.
Yes of course you can arrest on this section, but my point is that officers that do must have cooberating evidence, either they called the pharmacy, or she admitted it wasnt hers, or some other thing, but it wasnt just that they were her meds, but she didnt have the prescription with her....there was some other factor and evidence of no prescription. Also False -burden of proof is NEVER on the citizen...the officer bears the responsibility to show "probable cause" that no prescription for the pills exists. Thats why its "innocent until proven guilty." It's not a person's burden to show that he is not driving intoxicated, its the State's, ie officer's responsiblity to show that the person IS driving intoxicated. Same with with theft. I don't have to prove I didn't steal my groceries in my car. The officer needs to show probably cause that I did. Now I'm sure CHP has arrested for this. So have I. But always with supporting evidence which overwhelmingly shows that the medication possessed by someone were not prescribed to them. Even though that lady might have looked like your aunt, I'm sure it wasnt the case that she simply left her prescription at home - and if it was I'm sure (also I hope) there was other evidence she really didn't have the prescription. Usually this section is used for pain medication or downers. So again this CHP container is in no way entrapement. I think its kinda cool actually. Ease up on CHP lol. Also thats not even taking into consideration spirit of the law, this is even a letter of the law issue. Officers must have probably cause no prescription exists. And lack of having the prescription with you is definately not probably cause - it might be part of you probably cause, but that alone is totally insufficient to arrest on this statute.
ReplyDeleteFirst of all, stop writing "probably". It's "probable cause." Haha, Stupid iPhone.
ReplyDeleteNext, stop thinking like a good cop for a second and start thinking like a bad cop. There are bad arrests made. It doesn't mean the person was convicted of the crime. There are bad reports, bad evidence, and bad cops.
Here's another example, again from CHP. They arrested the blood draw lady, in the jail for 23152 (DUI). They did not see her drive to the jail. She may or may not have driven to the jail since the place she was drinking was at a party across the street at a bail bondsman's office.
They just assumed she drove and arrested her. They did not see her driving. She was not convicted but she had to go to court and prove her innocence and deal with all of that.
Although, I don't truly believe the CHP intended to entrap people with this container, it creates an opportunity for a bad cop to make an arrest using 4060. Stop trying to over-think this. I know what a good cop would do, and I know this would normally be used in conjunction with 11377,78,79 and 23152 and others like that, but putting your pills in a container that does not show you have a prescription sets you up for failure. You said it yourself, "it might be part of you(r) probabl(e) cause". Some bad cops, might make it all of the PC.
But, you go out there and keep being the hero. Dwight would say of you, "A hero kills people, people that wish him harm. A hero is part human and part supernatural. A hero is born out of a childhood trauma, or out of a disaster, that must be avenged."
He was thinking superhero, but it fits you. Hero.
you're bizarre thinking is preplexing...DUI's are a little different because 40300.5 CVC allows for a warrantless DUI arrest without seeing someone driving as long as you can articulate they were and if they were involved in a motor vehicle or their vehicle is blocking a roadway.
ReplyDeleteYou can't articulate what you don't know. That's why it was thrown out of court. 40300 allows for arrests when misdemeanors don't happen in the presence of the officer; things like coming up on a crash scene of a suspected DUI when the suspect is laying near the car drunk and passed out, or arresting a drunk who is simply sitting at the wheel of a car parked, or other misdemeanors not committed in the officer's presence that fall into the listed categories in the subsections. If there are no articulate-able facts, there has to be a stretching of facts or a lie. I'm not going to accuse anyone of lying, but stretching the facts would have to be done in these cases or a huge assumption of facts. The CHP had no way to articulate whether the phlebotomist drove to the jail or if she walked across the street from the party at the bail bondsman's place. "I think she probably drove to the jail because she doesn't live near by," doesn't work.
ReplyDeleteI know that one is able to write a report without directly making things up or lying, but it is possible to make a report say something that may be what an officer believes happened instead of the facts. The CHP officers believed the phlebotomist drove to the jail, but they had no facts to back that up. She was at the jail well before the CHP arrived. She was across the street and was contacted by CHP dispatch while the officers were still enroute to the jail.
Let it go Jarrett. Let it go. Don't be sucked into the bad cop world. Don't forget to remove yourself from your job once in a while. Spirit of the law is not always how an officer feels. If you upset an officer, letter of the law is what they may go with, because they can. When it comes to DUI and drugs, CHP wants every stat they can get. If that means writing a very "liberal" report, it may happen. In this case, CHP did make a mistake in arresting the phlebo.