The federal government announced that more than 65 prescription medications containing the most widely-prescribed painkiller, hydrocodone, will now be subject to new, stricter federal prescribing rules as of this past week.
The new regulations published by the DEA will make medications which contain hydrocodone subject to the same restrictions as other narcotics such as oxycodone and morphine.
The rules cover an array of prescription painkillers which combine hydrocodone with other analgesics such as, acetaminophen (Vicodin) or ibuprofen (Reprexain), as well as some prescription cough medications, all of which will be now be regulated as schedule II drugs.
The move was made in an effort to curb the abuse of these medications by limiting how they can be prescribed.
Hydrocodone has been listed as a schedule II drug since the enactment of the Controlled Substances Act in 1971, but many hydrocodone-containing medications remained in the less restrictive, schedule III category.
Among the changes in prescribing rules for hydrocodone-containing medications:
* A verbal prescription is allowed only in emergencies and a written prescription must follow within seven days or the pharmacist will notify the DEA
* Faxed, original prescriptions are permitted for home infusion/IV pain therapy, long-term-care facilities and hospices or terminally-ill patients.
* Prescriptions are limited to 30-day supplies, but prescribers may write up to three separate prescriptions, each for up to a one-month supply. Prescriptions will be void after 90 days.
State Health officials are encouraging doctors and other health professionals to use electronic prescribing for all schedule II medications.
It’s Time to Open these Gates!
The U.S. Sentencing Commission (USSC) voted in favor of making new federal drug guideline sentence reductions retroactive.
Most of you know by now, our country is in the midst of an incarceration crisis. Our great nation locks up more, per-capita, than any other nation. Many of these inmates are victims of harsh sentencing initiatives resulting from the failed war on drugs.
Last week, we received good news from Washington. Nearly, 46,000 federal drug offenders (25% of BOP population) will be able to file a motion in court to have their sentence reduced by an average of 2 years. This will only apply for those sentenced before November 1, 2014. The average sentence reduction for those who qualify will be two years!
Those of you with loved ones in federal prison may be asking, “Now what?”
Remember: not all federal drug offenders sentenced before November 1, 2014, will be eligible for a sentence reduction, and the reductions are not automatic.
Who won’t be helped by this decision?
1. Prisoners sentenced for other than a drug offense.
2. Prisoners serving a mandatory minimum for a drug offense.
3. Prisoners sentenced as Career Offenders.
While courts can begin considering and granting motions for sentence reductions starting on November 1, 2014, prisoner releases will not begin until November 1, 2015. The Commission is giving courts and probation officers a chance to handle the big influx of motions for sentence reductions before probation officers must turn their attention to supervising the prisoners upon release.
If you are wondering if your loved one qualifies for this sentencing reduction, contact Federal Criminal Defense Attorney Elizabeth B. Carpenter.
It only takes seconds to fill a syringe with a lethal dose of heroin. Tuesday night’s dose can provide a pleasurable high, while Friday’s dose can have a 20-something year old discovered dead, foaming at the mouth.
I’ve had acquaintances that one would never suspect partake in such reckless behavior. I also had a friend die from a heroin overdose, and no one, except his suppliers, even knew he used the drug. While other drugs, such as alcohol, cocaine and meth can take years to kill someone, heroin can take seconds!
In recent years heroin has seen a huge growth in popularity among younger segments of our population. Back in the seventies we had images of junkies in a SOHO stairwell strung-out from years of drug abuse. Today, America’s heroin user is a high school or college student- well educated and from an affluent community.
On the local level, sheriffs, police chiefs and coroners, individually, are reporting:
- A heroin death a week since the start of 2013 in Jefferson Parish.
- Heroin-related deaths have tripled since 2012.
- Heroin use has reached epidemic proportions.
- Jefferson Parish leads the state in overall heroin deaths – 87 fatalities in 2012.
One explanation for this spike in heroin use is Louisiana’s implementation of a better tracking system for prescribing and selling pharmaceutical CDSs, which is reducing the street supply of those drugs. People who were once addicted to the great supply and accessibility to prescription opioids like Oxycodone (Oxycontin) and Vicodin are now turning to heroin for relief. Heroin is cheaper, does not require a prescription and readily available.
In 2001 the Louisiana Legislature passed a law reducing a mandatory life sentence with no benefit of parole or suspension of sentence for heroin distribution to a minimum mandatory sentence of 5 years and maximum of 50 years. Some lawmakers are now regretting this action. In the current 2014 Legislative Session, two bills have been introduced, SB9 and SB87, which will effectively raise the maximum sentence for heroin distribution and possession with intent to distribute to 99 years and raise the minimum sentence to 10 years with the requirement that 5 years be served without parole. I commend the legislature for attempting to punish the distributors more aggressively rather than the users (addicts). Nevertheless, I doubt that this law will have the desired effect, i.e. reduce heroin use. I do not believe that longer periods of incarceration produce lower risks of recidivism. In fact, I believe the contrary. When someone is incarcerated, after a period of time any potential for rehabilitation ceases and the risk of recidivism increases. Prisoners become too institutionalized for society after a while. What was once believed to be a solution to a problem only produces additional problems. Furthermore, for every individual who is incarcerated for heroin distribution, there is someone else waiting to step in place as a distributor regardless of the potential criminal penalties.
If you or someone you know needs addiction help of any kind, please contact a local physician or treatment center. Modern medicine has created many tools and solutions to assist heroin addicts get clean.
If you are caught in the web of Heroin and currently facing legal troubles, please feel free to contact me. I have helped many individuals with heroin distribution and possession charges.
5/12/2014 Update: I was wrong. The legislation is also trying to change the sentence for possession of heroin to a mandatory minimum of 5 years, even for a first time offender. Shame on you! To be continued…
I am happy to report that the Louisiana Association of Criminal Defense Lawyers’ (LACDL) voted last week to adopt an official policy statement related to the possession and use of marijuana. The 2014 legislative session has a number of marijuana-related bills up for debate. The LACDL Marijuana Policy Statement is as follows:
We believe that marijuana prohibition financially burdens taxpayers, encroaches upon civil liberties, engenders disrespect for the law, and disproportionately impacts students, lower income classes, African Americans, and other ethnic minorities who bear the brunt of cannabis arrests and prosecutions. The responsible consumption of marijuana by adults in private should not be defined as criminal behavior deserving of arrest, potential jail time, a criminal record, and the lifelong stigma that accompanies it. Criminalizing marijuana is a disproportionate response to what, at worst, is a health issue, not a criminal justice issue.
The LACDL Board of Directors unanimously voted to adopt the official Marijuana Policy Statement.
The Louisiana Association of Criminal Defense Lawyers (LACDL) is the only professional association of attorneys devoted exclusively to the profession of Criminal Defense. The LACDL mission is to promote a fair, accurate, and humane criminal justice system through education, advocacy, and the development of effective and professional defense lawyers. For more about LACDL, please visit www.LACDL.org.
Federal Trafficking Penalties for Schedule II Cocaine
FOR: Schedule II Cocaine — 500-4999 grams mixture Or
Schedule II Cocaine Base — 28-279 grams mixture
First Offense: Not less than 5 yrs. and not more than 40 yrs. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $5 million if an individual, $25 million if not an individual.
Second Offense: Not less than 10 yrs. and not more than life.
If death or serious bodily injury, life imprisonment. Fine of not more than $8 million if an individual, $50 million if not an individual.
FOR: Schedule II Cocaine — 5 kilograms or more mixture Or
Schedule II Cocaine Base — 280 grams or more mixture
First Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $10 million if an individual, $50 million if not an individual.
Second Offense: Not less than 20 yrs, and not more than life. If death or serious bodily injury, life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.
2 or More Prior Offenses: Life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.
If you are facing federal drug trafficking charges, contact Attorney Elizabeth Bagert Carpenter. She is a highly skilled New Orleans Drug Crimes Attorney. We are ready to fight for you!
Are You Being Charged or Investigated for a Drug Crime in Federal or Louisiana State Court?
If you have recently been charged with possession with the intent to distribute, you need to enlist the assistance of an experienced New Orleans Drug Crimes Attorney immediately. Our firm has the experience and dedication required to take PWID charges head on. Click here to contact Attorney Elizabeth Bagert Carpenter.
Defending Against “Possession with the Intent to Distribute” Charges
Possession with the intent to distribute, or PWID as it is commonly known, is a serious charge and can result in long prison terms.
Possession with the intent to distribute offenses have three elements:
1.) That the defendant possessed a controlled substance, either actually or constructively;
2.) That the defendant did so with a specific intent to distribute the controlled substance; and
3.) That the defendant did so knowingly and intentionally.
How Can the Government Prove the Intent to Distribute?
Rarely does a PWID charge result from an actual drug transaction. If there is a transaction, then that defendant could be charged with distribution, rather than PWID. However, in cases where a defendant is found in possession of a large amount of controlled substance, prosecutors may try to prove the intent to distribute circumstantially.
Circumstantial evidence is different from direct evidence. Direct evidence tends to point to a suspect directly, such as an eyewitness account, fingerprint evidence, video tape recordings, etc. Circumstantial evidence relies on an inference or assumption. For Example:
Joe Bloe is caught crossing the US/Mexico border with 5 pounds of cocaine. The cocaine is divided into one ounce baggies. Joe Bloe has scales, extra baggies, razor blades, $45,000 cash, and two illegal guns in the car with him.
None of that evidence directly shows that Joe Bloe has the intent to distribute the cocaine. Direct evidence of his intent would be if he told the arresting officer that he intended to sell the drugs. Nevertheless, Joe Bloe may be charged with PWID because all of the other facts surrounding his arrest amount to circumstantial evidence that he had the intent to sell the drugs, rather than use them himself. In other words, a fact finder could reasonably conclude that Joe Bloe had the intent to distribute the drugs after excluding every reasonable hypothesis of innocence.
How to Defend Against PWID Charges
PWID cases are won and lost on the circumstantial evidence in the specific facts of the case. A good criminal defense attorney will challenge all evidence that the government tries to use to prove the intent to distribute.
Additionally, an experienced criminal defense attorney will attempt to suppress the physical evidence of the contraband when possible. Without the actual contraband, the government has an incredibly difficult time proving any offense occurred.
If you have been arrested or charged with possession of marijuana or drug paraphernalia in Kenner. Contact our firm to speak with a New Orleans Drug Crimes Defense Attorney.
Kenner Municipal Code Sec. 7-191. — Possession of Marijuana
Marijuana is hereby defined as follows:
Marijuana means all parts of the plants of the Genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
Kenner Municipal Code Sec. 7-192. — Drug paraphernalia
Definitions. As used in this section, unless the context clearly otherwise indicates, the term “drug paraphernalia” shall mean and include, but not be limited to:
All equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation on the Uniform Controlled Dangerous Substances Law, as scheduled in LA-R.S. 40:964.
Prohibited Acts: It is unlawful for any person to use, or to possess with intent to use, any drug paraphernalia; to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this part.
Penalties: Anyone who violates the provision of this section shall subject the offender to a fine not in excess of five hundred dollars ($500.00) or imprisonment of not more than sixty (60) days, or both.
Model Glue; Use of; Abuse of Toxic Vapors; Unlawful Sales to Minors; Penalties — La.R.S. 14:93.1
It shall be unlawful for any person to intentionally smell or inhale the fumes of any type of model glue or toxic vapors for the purpose of causing a condition of or inducing symptoms of intoxication, elation, euphoria, dizziness, excitement, irrational behavior, exhilaration, paralysis, stupefaction or dulling of the senses or nervous system; or for the purpose of, in any manner, changing, distorting or disturbing the audio, visual or mental processes. This Section shall not apply to the inhalation of any anesthesia for medical or dental purposes.
It shall be unlawful for any person to sell any type of model glue to a minor for any reason whatsoever.
It shall be unlawful for any person to sell or otherwise transfer possession of any type of model glue to any minor for any purpose whatsoever, unless the minor receiving possession of the model glue is the child or ward of and under the lawful custody of the vendor, donor or transferor of the glue.
Any person violating any provisions of this Section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not more than ninety days for each such offense or both.
New Orleans Drug Crimes Defense Attorney
Illegal Use of Controlled Dangerous Substances in the Presence of Persons Under Seventeen Years of Age — La.R.S. 14: 91.13
It shall be unlawful for any person over the age of seventeen, while in the presence of any person under the age of seventeen and when there is an age difference of greater than two years between the two persons, to use, consume, possess, or distribute any controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act.
Whoever violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for more than six months, or both.
This offense is a misdemeanor.
United States v. Cotton (2013): U.S. 5th Circuit Ruling
Never give a police officer permission to search your vehicle or home!
In February 2011, Marvin Cotton was driving his rental car along Interstate 10 in east Texas when, without changing lanes or slowing his speed as required by Texas law, he passed Lieutenant Tony Viator’s emergency vehicle parked on the side of the road. Having already received a tip from a fellow officer that Cotton might be carrying drugs, Viator conducted a stop and a lengthy detention, running license checks with dispatch and questioning separately both Cotton and his passenger about their itinerary and their reasons for travel. Viator’s suspicion grew when inconsistencies in Cottons’s and his passenger’s stories emerged, so he sought Cotton’s consent to search the rental car for drugs. An audio recording from the camera on Viator’s vehicle captured Viator’s solicitation of Cotton’s permission to search everything in the car. Though Viator first requested permission, he twice more asked whether he could search the car. The parties disputed Cotton’s response to Viator’s initial request, but as to the two reiterated requests, Cotton indisputably responded by limiting his consent to a search of his luggage only. Nevertheless, Viator meticulously searched the entire vehicle, ultimately discovering a small, plastic-wrapped bundle containing crack cocaine concealed in the vehicle door’s inner cavity. Cotton then made incriminating statements while trying to work out a deal with the officers. He filed a motion in the District Court to suppress the drugs and the statements. The motion was denied, and Cotton pleaded guilty to one count of possession with intent to distribute more than 280 grams of cocaine and was sentenced to 121 months in prison. He appealed the District Court’s denial of his motion to suppress, having reserved the right to do so in his plea agreement.
The Fifth Circuit reversed the denial of Cotton’s motion to suppress, and vacated his conviction and sentence. The Court concluded that Cotton had limited his consent to the search of his luggage only. Consequently, Viator’s prolonged and more extensive search of Cotton’s entire vehicle violated his Fourth Amendment right, and the drugs uncovered during the unauthorized search of the vehicle, and the incriminating statements made shortly thereafter should have been suppressed as fruits of the unlawful search.
Attorney Elizabeth B. Carpenter has defended almost every type of Drug Crime imaginable in New Orleans and South Louisiana.