by Caitlin Huston
A Logansport couple await a decision on whether the sale of drugs at their store constitutes a felony.
Vincente and Norma Garcia face seven charges stemming from the alleged sale of prescription drugs out of their grocery store. At a hearing Tuesday, attorney Matthew Barrett, who represents the Garcias, argued that the drugs sold were not prescription drugs and that the prosecution could not count the individual ingredients making up the drugs as an offense.
Cass County Superior Court II Judge Rick Maughmer took the matter under advisement.
The Garcias were two of seven people arrested after the Cass County Drug Task Force and Food and Drug Administration used search warrants on May 25, 2011, in three Logansport stores — Tienda Michoacan, La Fiesta Carniceria and La Hidalguense — to look for prescription drugs. Both agencies had previously conducted controlled drug buys at the stores.
Both Garcias initially faced 11 charges, but three class C felonies of practicing medicine without a license and a class D felony charge of maintaining a common nuisance were dismissed this past summer. The seven remaining charges are three counts of unlawful sale of legend drugs, a class C felony; three counts of unlawful possession or use of a legend drug or precursor, a class D felony; and one count of maintaining a common nuisance for legend drugs, a class B misdemeanor.
The issues brought up at Tuesday’s hearing are only a part of the motion Barrett filed in June, in which he argues that the raid on the store was unconstitutional and that the court should suppress evidence from the raid and the defendants’ statements to police.
At Tuesday’s hearing, Barrett again argued that Pentrexyl and Flanax — the drugs the Garcias are accused of selling — are not prescription drugs because they are not FDA-regulated and not found in the FDA’s “Orange Book,” which governs prescription drug products.
However, the charge information was changed by Deputy Prosecutor Andrew Achey on Oct. 17 to use generic names for ingredients in the drugs instead of using the brand names. The Garcias are accused of selling naproxen sodium and ampecillin, the active ingredients in the drugs.
Barrett protested these charges as well, saying that a prescription drug is defined by the sum of its ingredients.
“A drug ingredient alone is not a drug, let alone a legend drug,” Barrett said.
He added that naproxen sodium is found in other non-prescription drugs.
Because of these issues, Barrett argued that the remaining charges should be dismissed.
Achey countered that because the drugs contained 550 mg of the active ingredients, they did constitute a legend drug, as outlined in the Orange Book.
“I don’t think the charges here should be dismissed because they’re in violation of state law, maybe even of federal law,” Achey said.
At Maughmer’s request, Achey also said he would change the brand names of the drugs to ingredient names in the four remaining charges.
He added that prescription drugs containing ampecillin require a prescription.
During the hearing, Barrett also objected to the fact that he had not received audio recording from a probable cause hearing that he claims occurred May 23, 2011. However, Maughmer said he would rule in the written order that he would stand by his initial ruling, in which he said the hearing did not occur.
“I’m going to deny the motion to reconsider,” Maughmer said.
The penalty for a class C felony is two to eight years in prison and a fine of up to $10,000, and the penalty for a class D felony is six months to three years in prison and a fine of up to a $10,000. The penalty for a class B misdemeanor is up to 180 days in prison and a fine of up to $1,000.