FORECITE National™
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VOLUME 11 - CHAPTER 252
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252.4 Authorized Possession Of Contraband
252.4.1 Possession Of Controlled Substance: Defense Of Authorized Possession Pursuant To A Valid Prescription
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11 - CHAPTER 252
252.4.1 Possession Of Controlled Substance: Defense Of Authorized Possession Pursuant To A Valid Prescription
RATIONALE: When it is the defense theory that the controlled substance was legally obtained from a valid medical prescription special instruction on authorized possession may be appropriate.
POINTS AND AUTHORITIES: Obviously, a controlled substance which is possessed pursuant to a valid prescription should not ordinarily give rise to criminal liability. (See e.g., ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 6404-d [Controlled Substances-Possession Of A Controlled Substance--Defense Of Authorized Possession] (Lexis, 2nd ed. 1997).) Therefore, when this is the defense theory the defendant should have the right to pinpoint that theory in the jury instructions. (See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
SAMPLE INSTRUCTION:
The defendant is not required to prove that [he] [she] obtained the [drugs] [controlled substance] alleged in the charges pursuant to a valid prescription. Rather, the prosecution must prove beyond a reasonable doubt that the defendant's [alleged] possession was unauthorized.
If, after considering all the evidence, you have a reasonable doubt that the defendant was in unauthorized possession of _______________ <insert name of drug> you must give the defendant the benefit of that doubt and vote to find [him] [her] not guilty.
[Cf. ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 6404-D [Possession of a Controlled Substance--Defense of Authorized Possession] (Lexis, 2nd ed. 1999).]