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Pharmacy Pseudoephedrine Logs Are Nontestimonial Business Records

By Robyn Hagan Cain on May 02, 2013 | Last updated on March 21, 2019

In case you didn't already know this from watching "Breaking Bad," pharmacies track your pseudoephedrine purchases because the drug is commonly used to make meth.

That's why you get carded when you buy cold meds. It isn't enough for pharmacies to limit customers' pseudoephedrine purchases at a single store because meth-producers could just hop from store to store to buy the amounts they need. The driver's license tracking system arguably makes it harder for producers to get their hands on the drug.

This week, the Fifth Circuit Court of Appeals ruled that those pseudoephedrine transaction logs are nontestimonial business records, which means that it's pretty easy for the government to introduce the logs at trial.

The issue came before the appellate court when Melvin Towns challenged his conviction and sentence for conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. Towns appealed, primarily arguing that pseudoephedrine logs were introduced into evidence at his trial in violation of the business records exception to the hearsay rule and the Sixth Amendment's Confrontation Clause.

Towns made an interesting argument: He claimed that the pseudoephedrine logs were prepared with a law enforcement purpose in mind, and were only kept to comply with a Texas statute. According to Towns, the pharmacies do not (and actually cannot) use the records for day-to-day business, so they were not kept in the "ordinary course of business."

The Fifth Circuit Court of Appeals disagreed, noting that Towns' undue focus on the law enforcement purpose of the records had little to do with whether the pseudoephedrine logs were business records under the Federal Rules of Evidence. According to the court, it doesn't matter why pharmacies maintain the logs; what matters is that they are kept in the ordinary course of business.

The Fifth Circuit compared the pseudoephedrine purchase logs to the firearm records that gun shops maintain to fulfill governmental regulations. In 1979, the appellate court held in U.S. v. Veytia-Bravo that the firearm records were business records since a company could lose its corporate privileges for failing to properly maintain them.

The motivation for keeping records doesn't mean that the records aren't kept in the ordinary course of business. With that in mind, the court concluded that the transaction logs conformed to Federal Rule of Evidence (FRE) 803(6), and affirmed Towns' conviction and sentence.

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