According to the Lynn Item, back in August of this year Michael DeStasio of Revere, Massachusetts entered a CVS pharmacy in Beverly, Massachusetts. He presented the pharmacist with a prescription for Percocet. The prescription was for an elderly woman. It was also a bad prescription. The police were called. They confronted DeStasio who claimed that he got the prescription from a man in a bar. DeStasio, who has two prior convictions for the same offense is being prosecuted in the Essex County Superior Court in Salem. He is being charged with Uttering a False Prescription, a Second and Subsequent Offense.
Uttering a False Prescription is a felony pursuant to Massachusetts General Laws Chapter 94C Section 33. The law prohibits anyone from uttering a false prescription and from possessing controlled substances through forgery or other deceptive means for the purpose of getting the drugs from someone permitted to dispense the substances, i.e. in this case a pharmacy. A conviction for this offense carries up to four years in state prison. A conviction for a second and subsequent offense, as is the case for DeStasio carries as sentence of up to twice that for first time offenders.
The law is pretty straightforward. As a matter of fact, it is so straightforward that there is virtually no significant case law discussing the subject in Massachusetts. There are some defenses to this crime discussed in limited detail in the Lexis annotations to the statute. There might be a defense of duress, or of coercion or perhaps necessity. The defense of necessity requires the district attorney to prove beyond a reasonable doubt the absence one of the following three elements: 1) that the defendant was confronted with an imminent danger, one that was clear and not subject to debate; 2) that the defendant had a reasonable expectation that his conduct would reduce or eliminate the danger and 3) that there was no legal effective alternative. This defense is rarely used. I recall using the defense of necessity successfully on one occasion. That case involved a defendant who was operating a motor vehicle on a driver’s license that had been suspended for OUI. One of his family members suddenly became severely ill requiring immediate medical attention. He called 911 and after waiting for over ten minutes he placed the family member in his car and sped off to the hospital. There was a record of his 911 call and the delay in the EMT response was well documented. The trial proceeded without a jury and the defendant was acquitted.
In the context of this case I have difficulty seeing the viability of the defense mentioned particularly where this is not DeStasio’s first offense. If he has a known substance abuse addiction or problem perhaps his Massachusetts Criminal Lawyer will have some success in getting this case resolved without the need of having to go through with a trial. Massachusetts judges and prosecutors are often sensitive to these types of problems and case dispositions tend to focus on rehabilitation and cure rather than lengthy periods of incarceration.
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