Common Questions about Prescription Drugs

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I thought I’d take a minute to discuss three questions that I get about prescription drugs. [Update: Several people posted comments or emailed me about the relationship between prescription drugs and controlled substances. I discussed that issue in some detail in this post, but briefly, some prescription drugs contain controlled substances and some don't. Certainly, if a prescription drug is also a controlled substance, the controlled substance laws will apply to it and will prohibit possession, sale, etc. of the substance absent legal authority. The discussion below focuses on the prescription drug laws, i.e., on prescription drugs that are not controlled substances.]

1. Is it illegal to possess a prescription drug without a prescription? No, at least under state law. It may be illegal to “recei[ve] in commerce” a prescription drug without a prescription under G.S. 106-122(3), but I’m not aware of any statute that criminalizes simple possession of a prescription drug without a prescription.

2. Is it illegal to sell a prescription drug without a prescription? Until recently, I thought that the answer to this question was yes under federal law but no under state law, and I said as much in an earlier blog post. But then I came across the following language in G.S. 106-134.1(a), the statute that imposes the prescription requirement: “The act of dispensing a drug contrary to the provisions of this subdivision [i.e., without a prescription] shall be deemed to be an act which results in a drug being misbranded while held for sale.” A person who holds a misbranded drug for sale commits a misdemeanor under G.S. 106-122(1) and G.S. 106-124. The term “dispense” doesn’t seem to be defined in Chapter 106. There’s a very narrow definition in Chapter 90, which, as explained in the prior post, is why G.S. 90-85.40(c) doesn’t criminalize the sale of a prescription drug without a prescription, but it isn’t obvious that the Chapter 90 definition must be imported into Chapter 106. So now I think this conduct may be a crime under state law. I’ve emailed the Board of Pharmacy to get its view, and I’ll post an update here if and when I receive a response.

3. Is it illegal to possess a prescription drug in an unlabeled container? No. And that’s a good thing for all the old folks with their Sunday-through-Saturday pill dispensers. I have heard about this being charged under G.S. 90-106(f), but that statute only requires the use of a labeled container when a controlled substance is “dispensed or distributed,” not when it is merely possessed. Likewise, although I have heard about this being charged under G.S. 106-122, the various provisions of that statute generally apply to items that are being sold or held for sale, not merely possessed.

As always, if you disagree with, care to add to, or wish to comment on the above, feel free. And if there are other recurrent questions about prescription drugs, let me know and I’ll try to answer them.

10 comments on “Common Questions about Prescription Drugs

  1. As to #3, it is if you are on supervised probation. Regular condition of probation #11, states “Not use, possess, or control any illegal drug or control substance unless it has been prescribed for the defendant by a licensed physican and is in the original container with the prescription number affixed on it;…..”

  2. Not sure if you mean this post to apply to possession of schedule II, III, or IV prescription drugs under 90-95(d)(2) ?????

  3. If its scheduled, it would be a violation of 90-95.

  4. Jeff: It is not clear to me whether you are using the term “prescription drug” and “controlled substance” interchangeably. At least under Federal law, there is an important distinction. Every controlled substance requires a prescription, but not every drug that requires a prescription is a controlled substance (e.g., an antibiotic requires a prescription, but it is not a controlled substance).

  5. I think what Scott was trying to point out is that if a person is on supervised probation that this is a condition of their supervision and is now in essence “court ordered” that they not possess any prescription drug unless it is in its respective container. Correct me if im wrong. This would not apply to the general public.
    Also to change the subject I would like to ask how is it legal for people to transport hundreds of prescription pills across state lines? We are having instances where probationers are going to Florida or Georgia and getting their rx for huge quantities of narcotic pills and bringing them back to NC to distribute. Do you know of any laws or pending laws that prohibit this. I know that it is “legal” for them to have it in their possession as it is prescribed to them.

  6. so if a person is going to the pharmacy to pick up a controlled substance for their grandmother in their grandmothers name would they be guilty of a crime?

  7. These are my thoughts on the issues raised in the post, which come with no warranties – I would appreciate any corrections from members of the bar.

    Basically, prescription medications generally fall into Schedules II, III, and IV, such that they are unlawful to possess by anyone, subject to exeptions laid out by the General Assembly. In fact, N.C.G.S. 90-101(c)(1) provides that “[t]he following persons shall not be required to register and may lawfully possess controlled substances under the provisions of this Article: … [the] ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner[.]”

    If you go further, N.C.G.S. 90-113.1 appears to set the burden of proof for a establishing an exemption under the Controlled Substance Act on the person claiming the exemption – namely, if your position is that you are entitled to possess percocet because the doctor said so, then you have to establish the existence of your exemption, i.e. a lawful prescription.

    I think this is one reason for the ubran legend that its against the law to possess meds outside the original prescription bottle – I can’t find any such statute that requires this of the ultimate, prescription holding user.

    But, the burden rest on the ultimate user to prove they are protected by an exemption. The easiest way to do so is by pointing out your name on the prescription bottle to the nice officer that just searched your car because his K-9 twitched, wiggled, or sniffed in its own special way.

    Again, I may be completely off base on this issue and would appreciate any comments or corrections.

    • The “urban legand” almost certainly originated with police officers who misread the law. I have had several clients that were charged with possession of a controlled substance not in the original container. While I have had no trouble getting DAs to read the law and dismiss those cases, some police officers still charge it.

  8. I left my prescription (shedual II) at my rental property by mistake and that tenant has been charged with possesion of the drug by the fact that police found it there during a search. Can they be convicted of possesion if I left it there by mistake and I own the property?

  9. Yeah, this really helps a lot (NOT!). My wife has MS and occasionally smoked marijuana to help alleviate the symptoms, but then they took her pain medication away, as it is illegal to even possess this horrible “controlled substance” in your own body!

    We are currently in the process of “weaning her” down from the daily dose, but I have a feeling this is not going to be very pretty at all. I just hope to get the word out about this abominable practice before MORE people get hurt from it. By the way, the “weaning” process is still not going well, as she is so used to having twice as much every day. I just want to get the word out there!

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