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September 14, 2011

State Drug Statute Ruled Unconstitutional

By Hager & Schwartz, P.A.

August 29, 2011

A Federal Judge in Orlando has recently ruled Florida’s drug statute unconstitutional because, according to the court, it violates the 14th Amendment to the Constitution. Since that ruling, at least one state circuit court judge in the Eleventh Judicial Circuit has followed suit and dismissed all of the drug possession cases in his division on the same grounds. The problem with the current state law can be traced back to 2002 when the Florida legislature repealed the knowledge requirement in dealing with drug cases. Florida is the only state that has done away with the knowledge requirement for narcotics offenses. In other words, the prosecutor in drug cases only have to prove that drugs were in a persons possession and do not have to prove that the person knew that what they were in possession of what was actually a narcotic. Many of our firm’s past cases are consistent with such a fact pattern. For instance, if a police officer stops a vehicle and subsequently finds narcotics in the vehicle, typically all occupants will be arrested for possession of the drugs, even though most of them had no idea that there were drugs in the car and thus the intent element to possess drugs does not exist. These types of cases could be potentialy thrown out as a result of this ruling if the state can not prove that each individual occupant knew that there were drugs in the vehicle.

In criminal cases, the prosecution has the obligation to prove that a defendant acted with criminal intent, otherwise known as mens rea. Defense lawyers are currently arguing that the current law which fails to provide that knowledge is a key element in drug possession cases is a violation of an individual’s due process rights.

In the upcoming weeks and months, motions to dismiss open cases or motions to vacate previously closed cases will be filed for the court’s consideration as a result of this recent ruling.

Regardless of how a state court may rule on a particular case, the end is probably far off as the losing side will most likely appeal the ruling to the appellate court for further clarification of the constitutionality of the state statute. As a result of the thousands upon thousands of cases that could be held in limbo as a result, the appellate court could rule the issue as one of great importance and ask the State Supreme Court who could then ask the United State Supreme Court to make a final determination of the statute’s constitutionality. There is a long road ahead for all pending and possibly past possession cases.

Our criminal defense lawyers are actively filing these motions on all drug cases that were charged based on this Florida Statute.