Expired Prescription Does Not Mean Deputy Violated Drug Policy

Mister Walker (that’s his real first name) has been a deputy sheriff with Cook County, Illinois for 32 years. When Walker’s random drug test was positive for oxazepam, the County opened an investigation into his drug use. During the investigation, Walker provided multiple prescription bottles, including ones from 1995 and 2000, one of which included a medication that would yield a positive result for oxazepam.

A merit board conducted a hearing, and the County terminated Walker, who challenged the termination in the Illinois Court of Appeals. The Court overturned Walker’s termination and ordered that he be made whole with full back pay.

The Court noted that when it reviewed “the general orders and rules at issue, it became apparent that none of these general orders or rules details at what point a legally-obtained prescription becomes invalid. Neither party has cited to any statute, ordinance, or rule that provides a time frame in which a legal prescription becomes invalid and that continued use is an abuse of a prescription.

“The County points to the Illinois Controlled Substances Act as authority for the proposition that use of a prescription after six months is invalid. However, that section is directed at pharmacists and the filling of a prescription. This statute does not contain any language restricting the use of a legally filled prescription. The statute only mandates that a written prescription cannot be filled by a pharmacist more than six months after it has been issued. Therefore, we find this provision does not support the Merit Board’s conclusion that Walker’s conduct was an abuse of a prescription medication because Walker took a pill from a prescription bottle that could not be refilled.

“The two Sheriff’s Office representatives offered testimony suggesting that Walker’s 1995 and 2000 prescriptions were invalid, but neither recalled seeing a written policy detailing this suggestion. Collins admitted that policy did not include the word ‘current’ and she had not seen a written policy stating that taking a pill from an older prescription bottle is a violation of the drug policy. Hynes testified that she believed prescriptions were valid for one year based upon her review of her own prescriptions. Further, she admitted that the drug policy did not have an express prohibition on taking prescriptions after a certain period of time. This type of testimony is not competent evidence of the existence of a policy that prescriptions older than one year are invalid under the drug policy.

“We also question whether either of the witnesses who testified for the Sheriff were qualified to give an opinion on what abuse of a prescription medication is because neither witness had any background or experience in the area of abuse of prescription medication. There was no medical testimony whatsoever to establish that taking a pill from an older prescription bottle was not within the limits of ‘a medically valid prescription’ or that Walker’s conduct was an abuse of prescription medication. Further, there was no evidence to contradict Walker’s testimony that the amount he took the night before the test was abusive or excessive or that it was being taken for any purpose other than that for which it was prescribed. In fact, the testimony at the hearing was uncontradicted that Walker was prescribed the two types of medication for anxiety and for difficulty sleeping on an ‘as needed’ basis.”

Walker v. Dart, 2015 IL App (1st) 140087 (Ill. App. 2015).