FLORIDA DRUG LAW AT CENTER OF CASE

A Florida Law That Labels Anyone With More Than An Ounce Of A
Controlled Substance A Drug Trafficker Sent A Man With A Dependence On
Painkillers For His Chronic Pain To 25 Years In Prison

TAMPA - For a man sentenced to 25 years in prison on drug trafficking
charges, Richard Paey had a lot of powerful people on his side.

Prosecutors, a judge and some jurors didn't think the chronic pain
patient from Hudson should go to prison at all.

So why, an associate appellate judge asked Tuesday, didn't authorities
seek help rather than punishment for the man who uses a wheelchair?

We did, the state said.

And Paey turned it down.

Now three 2nd District Court of Appeal judges are left to decide
whether a case that has drawn the interest of advocates worldwide and
was featured on 60 Minutes last month should ever have gotten this
far.

''I don't understand why nobody can take a step back and say this is
wrong,'' Paey's wife, Linda, said.

At issue is a one-size-fits-all Florida law that labels anyone with
more than an ounce of a controlled substance a drug trafficker, even
if the person never deals. The Pasco County Sheriff's Office and the
federal Drug Enforcement Administration nabbed Paey after watching him
buy more than 1,200 painkillers from different pharmacies from January
to March 1997.

Undated prescriptions from his New Jersey doctor and a copy machine
gave Paey the ability to fake numerous prescriptions, which he used to
obtain 800 pills of a painkiller made with oxycodone.

Officers figured he was selling the drugs but never found any
evidence.

Paey, a graduate of the University of Pennsylvania's law school, was
frank about his use of pain medications.

He said he developed a dependence on painkillers after a bad car
wreck, failed back surgeries and a multiple sclerosis diagnosis. As
his tolerance of the medications grew, so did his need for larger amounts.

Yet local doctors were skittish about writing his high-dosage
prescriptions.

''Without medication,'' said Paey's attorney, John P. Flannery, ``it
is like his legs are on fire, unremitting pain.''

Prosecutors in Pasco weren't gung-ho about trying Paey as a drug
trafficker. They offered him house arrest and probation; he refused on
principle. After a mistrial and an overturned conviction, a jury in
2004 found Paey guilty on 15 counts of trafficking in oxycodone,
possessing hydrocodone and fraudulently obtaining prescriptions.

Again, the state attorney's office offered a deal in exchange for Paey
giving up his appellate rights. When Paey said no, Pinellas-Pasco
Circuit Judge Daniel Diskey grudgingly handed down the mandatory 25-
year sentence.

Paey, now 47, sat Tuesday in the Tomoka Correctional Institution in
Daytona Beach as his attorneys petitioned the appellate panel in Tampa
to declare the convictions and prison sentence to be ``cruel and
unusual punishment.''

''I think the judge followed a law that is unconstitutional,''
Flannery said. ``The Legislature has usurped its power.''

He accused Scott Andringa, the assistant state attorney who tried
Paey's case, of being a ``one-man prosecutorial misconduct machine.''

Assistant Attorney General John Klawikofsky fired back, arguing that
investigators found a ''prescription factory'' in Paey's home.
Legislators hold the power to set sentencing guidelines, he said, and
the courts should intervene in grossly over-punished cases.

This case does not qualify, he said.

''The Legislature has drawn the line in the sand,'' Klawikofsky said,
``and that line is 28 grams.''

The judges, whose audience at the Stetson University College of Law's
Tampa campus included TV and still cameras and a film crew from
Europe, seemed loath to take an activist role.

Presiding Chief Judge E.J. Salcines questioned the judiciary's right
to change the trafficking statute, noting that lawmakers included both
drug possession and selling. He asked whether clemency from the
governor would be a more appropriate route than appellate relief.

Paey's supporters said at a news conference that excessive government
scrutiny was the root of troubles for patients with chronic pain.

''The pain patients have become more and more sort of presumptive
criminals having to prove their innocence,'' said Siobhan Reynolds,
president of the New York-based Pain Relief Network. ``I don't think
anybody ever thought that the war on drugs was going to mean a war on
pain patients and their doctors.''

No matter the intent of state law, Paey didn't help himself by
rejecting plea offers, said state Sen. Mike Fasano, R-New Port Richey.

''What was passed was to go after true drug traffickers,'' Fasano
said. ``There's a gentleman who really shouldn't be serving time, but
he had a choice not to serve time.''

Linda Paey, an ophthalmologist, said a morphine pump now provides her
husband with more pain medication than he took outside prison.

''I pressured him to take the plea,'' she said, surrounded by the
couple's three teenage children. ``I would have taken it. But he couldn't.

``He wanted to but he can't.''