Got a tough question. Have an indictment for fraudulent possession of phenergan with codeine at trial. Depending on what schedule it falls under makes a difference as to whether we should be in felony court. Testimony from a pharmacist is that mixture is typcially a schedule V. Defendant never got the script. However, if you read Smith v. State, 986 SW2d 86, it seems that may not be the casue. Facts in this case are almost identical. Judge is allowing a jury submission on the felony. Is that kosher?

It should be Schedule V in the federal CSA but I'm not sure what penalty group it falls in under TX HSC 481.

In that Smith v. State out of Houston's 1st a pharmacist testified that the cough syrup contained more than 90mg codeine per dosage unit. This testimony was not challenged by the defendant. The court ruled that this alleged concentration of codeine made the compound a Schedule II substance and therefore the felony conviciton would stand.


According to MedicineNet the actual concentration of codeine appears to be much less, 6.25mg - 12.5mg per dose. In the Smith case the court basically shrugged and said, Oh well, too bad Mr. Smith... the only testimony said it was over 90mg/dose so that fact was found and we'll defer to that!


PS: Smith tried to guzzle the bottle of syrup before he was stopped by the officer so maybe Mr. Smith's dose is much greater than the 1 or 2 teaspoons that were recommended.

the schedule seems to contradict itself. Schedule V says 200mg/100ml or less. Schedule III says more than 200 mg/100ml OR 90mg/dosage unit or less. By nature, doesn't everything with codeine contain 90mg/dosage unit or less.

At the top of Schedule III it says:

quote:

---

"Unless specifically excepted or unless listed in another schedule:"

---

This particular preparation seems to be listed in Schedule V so that would mean Schedule III does not apply. Here is the language from Schedule V:

Schedule V consists of:
* Schedule V narcotics containing non-narcotic active medicinal 
ingredients A compound, mixture, or preparation containing 
limited quantities of any of the following narcotic drugs 
that also contain one or more nonnarcotic active medicinal 
ingredients in sufficient proportion to confer on the compound, 
mixture or preparation valuable medicinal qualities 
other than those possessed by the narcotic drug alone:
(1) Not more than 200 milligrams of codeine, or any of its 
salts, per 100 milliliters or per 100grams;"

So "phenergan" would be your active non-narcotic medicinal ingredients and the codeine concentration of 6.25mg per teaspoon (5ml) would work out to only 125mg per 100 milliliter. Since this stuff is a syrup you can bet the density is higher than water so doing the computation based on grams instead of milliliters wont help push it over the 200mg mark.

Maybe ask the pharmacy if it was extra concentrated syrup? Or maybe even my MedicineNet source is wrong about 6.25mg per teaspoon concentration.

Edit: Sorry the first quote above is not from the very top of Schedule III but rather the top of the Narcotics section in Schedule III.

2008 Texas Schedule of Controlled Substances

[This message was edited by AlexLayman on 03-10-09 at .]