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Man with prescription may get new drug trial

Man with prescription may get new drug trial
By COLLEEN JENKINS, Times Staff Writer
Published July 19, 2007

Judge calls the prosecution’s stance absurd.

TAMPA — Mark O’Hara swore he had a legal prescription when Tampa airport police found 58 Vicodin pills inside his bread truck. A doctor and pharmacist backed his story at trial.

But jurors convicted O’Hara of trafficking in hydrocodone, and a judge sent him to prison for a mandatory 25 years.

On Wednesday, the 2nd District Court of Appeal granted O’Hara a new trial, saying jurors should have been told that it is not illegal to possess Vicodin with a prescription.

The opinion, written by Chief Judge Stevan Northcutt, faulted prosecutors’ claims that Florida statute does not allow a "prescription defense" in drug trafficking cases.

Northcutt called the prosecution’s reasoning "absurd."

"Under the state’s position, a patient who left the drugstore with 60 validly prescribed Vicodin tablets would face a minimum mandatory prison term of 25 years and a fine of $500,000," the opinion stated.

He added later, "We are obliged by law to reject an interpretation of that statute that would lead to such ridiculous results."

Told of the reversal, the jury foreman from O’Hara’s trial said he would have voted for an acquittal if he had known about the prescription defense.

"I’m not going to sleep tonight," said Frank Brigliadora, the juror. "That’s definitely an injustice."

Not his first arrest

The appellate court opinion does not become final for 30 days. Prosecutors had not decided Wednesday whether they would retry O’Hara’s case.

"After we review the opinion of the district court and all the evidence in the case, we will proceed accordingly," Hillsborough State Attorney Mark Ober said.

O’Hara, now 45, drew the attention of airport police on Aug. 2, 2004, after he circled the departure area several times, then left his bread truck illegally parked and unattended.

Authorities worried that explosives might be inside. Instead, they found bread, a small amount of marijuana and 58 hydrocodone pills in a prescription bottle with the label partially torn off.

O’Hara, who said he went inside to check on a friend he drove to the airport, admitted that both drugs were his, the trial transcript shows. Police arrested him.

It wasn’t his first time in jail. In the 1980s, he served two short stints in Florida prisons for trafficking in cocaine, possessing a hallucinogen and tampering with a prosecution witness.

At O’Hara’s August 2005 trial, two doctors testified that they had been treating him since the early 1990s for pain related to gout and injuries he sustained in an auto accident. Over time, they prescribed hundreds of Vicodin, a drug commonly used to manage pain.

Prosecutors acknowledged that one of the doctors prescribed O’Hara 40 pills in December 2003 and 40 more pills in May 2004. They didn’t offer evidence that he sold any pills, but they argued that he had too many at one time and didn’t tell one doctor about the other.

On appeal, O’Hara’s attorneys said prosecutors misled jurors with insinuations of doctor-shopping.

"There was no testimony that they overlapped at all," defense attorney W. Thomas Wadley said Wednesday of the two doctors’ prescriptions.

He’s not the only one

Defense attorneys and pain relief advocates have long complained that Florida’s one-size-fits-all law is unjust because it labels anyone with more than an ounce of a controlled substance a drug trafficker, even if the person never sells any.

O’Hara, a Dunedin resident, didn’t contest the marijuana charge, which netted 67 days in jail. But state law dictated a 25-year minimum mandatory prison sentence for the quantity of Vicodin pills in his truck.

The appellate court did not say O’Hara was innocent. But it noted that the prosecution’s definition of drug trafficking could subject a person to prison and fines for possessing even one day’s worth of properly prescribed Vicodin.

Before the victory Wednesday, O’Hara’s case echoed that of Richard Paey, a Pasco man who landed in prison for 25 years on a drug trafficking conviction even though prosecutors and judges agreed that he suffered from chronic pain that required large amounts of prescription drugs to treat.

Paey’s appeals have been denied. He is seeking clemency from the governor.

Both men rejected plea bargains before their trials. Prosecutors offered O’Hara three years in prison, court records show.

During deliberations, jurors asked Hillsborough Circuit Judge Ronald Ficarrotta to clarify when the prescriptions had been written and filled and the definition of trafficking. The judge told them to rely on the evidence they heard at trial.

O’Hara’s trial attorney, Christie Pardo, asked for jury instructions to include a line about the legality of possessing hydrocodone with a prescription.

Prosecutors objected, and Ficarrotta declined to include the instruction.

The omission didn’t sit well with Brigliadora, the jury foreman. He was glad to hear that O’Hara will get a second chance at trial.

"If you tell me that the guy’s got a legal prescription, who cares if he’s carrying it around at that point?" he said. "I believe we were handcuffed by the court."