The following offers an example of how easy it is to commit criminal conduct without knowing it. It should also serve as a warning and allow people to avoid committing one crime in particular—the crime of unlawfully possessing one’s own prescription drug. Anyone who has a prescription for a scheduled drug should know that Maine law on unlawful possession defines the crime as “intentionally or knowingly possess[ing] what [one] knows or believes to be a scheduled drug, which is in fact a scheduled drug.” 17-A M.R.S. section 1107-A (1).  Prescription drugs are “scheduled drugs,” so any person who receives a filled prescription meets the above definition. The only reason that every person who picks up his or her own prescription medication isn’t immediately guilty of unlawful possession is that the law contains an exception for possession under certain authorized circumstances.  17-A M.R.S. section 1107-A (1) and (2). That’s right, possession of your own prescription drugs is illegal unless you are careful to possess them only in certain authorized circumstances. What are those authorized circumstances?

A person is not authorized to possess his or her own prescription drug unless the drug is “in the container in which it was delivered by the person selling or dispensing the drug.” 17-A M.R.S. section 1107-A (2), 22 M.R.S. section 2383-B (1).  There is only one circumstance in which a person is authorized to possess his or her own prescription drug outside its original container, and that is “when [the drug is] in use.” Id.  As soon as a prescription drug is removed from its original pill bottle, the person who possesses it commits a crime unless the drug is, at that point, “in use.” Obviously, if a person takes a pill directly from the bottle and swallows it, the drug is “in use” during that process. But what if the person is supposed to take a pill every 4 hours and doesn’t want to carry the pill bottle around?  What if the person puts a couple of pills in his or her pocket before heading off to work?  The pertinent statute says a drug may be considered “in use” when it has been placed in “reasonable repackaging for more convenient legitimate medical use.” Id.   But placing a pill in a pocket does not involve repackaging, so the person would arguably commit unlawful possession while the drug is in his or her pocket.  There is an affirmative defense available to some who are prosecuted for possessing their own prescription drug in unauthorized circumstances, but to successfully use the defense the person must prove by a preponderance of the evidence that he or she “possessed a valid prescription for the drug… and…at all times…intended the drug to be used only for legitimate medical use in conformity with the instructions provided by the prescriber and dispenser.” 17-A M.R.S. section 1107-A (4).

Don’t scoff at the possibility that a person could be charged for carrying his or her own prescription medications loose in a pocket. There is at least one prosecutorial district in Maine where at least one assistant district attorney will not hesitate to bring a charge against a person for that conduct.  In September of 2012, a story appeared in the Bangor Daily News about a man who was prosecuted for possessing a single oxycodone pill, in his home, outside the pill’s original container.  Although the defendant had a prescription for the medication, the expiration date had passed.  The Superior Court Justice hearing the case questioned whether a person could be guilty of possessing a drug that was prescribed to him. The Bangor Daily News quoted the assistant district attorney handling the case as claiming he’d prosecuted “hundreds” of similar cases.  This assistant district attorney operates on the theory that if your prescription was expired on the date of the alleged conduct, you no longer “possessed a valid prescription” at that time and therefore cannot avail yourself of the affirmative defense.   It is not clear whether:  (a) the passage of the expiration date printed on a prescription pill bottle renders the prescription no longer “valid” within the meaning of the controlling statute; or (b) whether the person “possessed a valid prescription” for the drug, for affirmative defense purposes, as long the drug at issue was legitimately prescribed for that person in the first place.  What is clear is, at least in this one prosecutorial district, you could find yourself on the other side of the “v.” from “State of Maine” if you aren’t careful.

To summarize:

— To legally possess one’s own prescription drug, a person must possess the drug only in its original container, except “when [the drug is] in use.”

— In this regard, the term “when in use” includes “reasonable repackaging for more convenient legitimate medical use,” so a person can only legally possess his or her own prescription drug if it is either: (1) in the original container; (2) in some form of repackaging for more convenient medical use; or (3) “when in use,” within the common sense meaning of that phrase, any time the drug is possessed outside such packaging/repackaging.

— Any time a prescription drug is possessed outside this narrow set of authorized circumstances, the drug is unlawfully possessed.  However, an affirmative defense is available to those who can show that they: (1) “possessed a valid prescription” for the drug at issue; and (2) at all times intended that the drug “be used only for legitimate medical use in conformity with the instructions provided by the prescriber and dispenser.”

— At least one prosecutor in Maine claims to have prosecuted “hundreds” of people for possessing a drug that was prescribed to them.

Maine law on possession of one’s own prescription drug was at one point even more stringent. There was a time when possession of a prescription drug was only authorized if the drug was in the original container, without any exception for reasonable repackaging for more convenient medical use. Back then, I marveled that a legislative body would pass a criminal law that a significant number of its members were no doubt unwittingly violating at the moment the law was passed.  After all, don’t you suppose more than a few of the legislators kept their prescription medications in those plastic medication day-planners at the time?

The lesson is that prescription pills should never be carried around loose, or stored anywhere outside their original pill bottle or some sort of repackaging that could be considered reasonable for more convenient legitimate medical use.  And, by the way, unlawful possession of a number of commonly prescribed painkilling drugs is a Class C felony.   If you have ever committed this crime, you have the right to remain silent so keep it to yourself and be more careful from this point on.


The above post is for informational purposes only and does not constitute legal advice. The reader has no attorney/client relationship with the author because he or she has read this posting.