Following the lead of U.S. District Court Judge Mary Scriven, who found on July 27, 2011 that the provisions of Florida Statute 893.13 violated fundamental rights of due process (read the Shelton order here), two State of Florida Circuit Court Judges have now also ruled that Florida’s primary drug prohibition statute is unconstitutional.   On August 17, 2011, Judge Milton Hirsch of the State of Florida’s Eleventh Judicial Circuit dismissed thirty-nine felony drug cases finding Florida Statute 893.13 violates due process and is unconstitutional.   Read the Hirsch order here.  Similarly, on September 14, 2011, Judge Scott Brownell of the State of Florida’s Twelfth Judicial Circuit, dismissed forty-two felony drug cases, finding that Florida Statute 893.13 is unconstitutional.  Read the Brownell order here.

To understand the legal basis of these rulings one must review the background and history of Florida’s drug possession laws. In 1996, the Florida Supreme Court in Chicane v. State, relying on its own precedent, common law, and federal court analysis, found that the state's drug possession law was unconstitutional absent a element requiring that the accused have guilty knowledge, which required the state to prove that the defendant knew of the illicit nature of the item possessed under Florida Statute 893.13. The court required that this guilty knowledge component be included as an element of the crime of possession and approved of trial courts granting defense requests for a special jury instruction on the requirement of knowledge of the illicit nature of the substance. In 2002, in Scott v. State, the Florida Supreme Court reiterated its holding in Chicane that knowledge of the illicit nature of a controlled substance was an essential element of the crime of possession or delivery of a controlled substance.

In 2002, the Florida Legislature amended the statutes in response to the Florida Supreme Court’s ruling in Scott to clarify its intention to remove the element of guilty knowledge of the illicit nature of the substance from the drug law, enacting Florida Statute 893.101, which states:

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No.
SC94701 (Fla. 2002) and Chicane v. State, 684 So.2d 736 (Fla. 1996), holding
that the state must prove that the defendant knew of the illicit nature of a
controlled substance found in his or her actual or constructive possession, were
contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled
substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense
described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

In effect, all three judges ruled, that the Florida Legislature, in 2002, made drug possession in Florida a strict liability crime. Meaning, that if one is in possession of a drug, even if one is unaware of the illicit nature of the substance possessed, one is guilty of drug possession and subject to imprisonment. These Court’s found that Florida’s drug possession statute, as amended in 2002, punishes anyone who possesses or delivers controlled substances however inadvertently, however accidently, however unintentionally. The statute reaches beyond those who willfully do wrong, beyond those who carelessly do wrong, and includes within its prohibition those who meant no wrong. The State of Florida is the only state in America that has eliminated the requirement of guilty knowledge of the illicit nature of the substance possessed or delivered, according to United States District Court Judge Mary Shelton. All three judges found the statute to be fundamentally unfair, a violation of due process and unconstitutional because it lacks a requirement that the accused know the illicit nature of the substance delivered or possessed.

Judge Brownell noted in his order that such a limited requirement of proof regarding guilty knowledge could lead to the following defendant’s being found guilty of drug possession:

1. A letter carrier who delivers a package containing unprescribed Adderall;

2. The roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home;

3. A mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.

As of this writing, the final determination regarding the constitutional validity of Florida’s primary drug statute, as amended in 2002, is unknown. Most Florida trial court judges who have been presented this due process issue since Judge Shelton’s ruling in July 2011 have refused to find the statute unconstitutional. No Florida appellate court has addressed the due process issue raised in the three rulings discussed above. The rulings, including those finding the statue constitutional, will undoubtedly be appealed and litigated over the next few years, perhaps to the United States Supreme Court.

Theses three rulings finding Florida’s drug possession statute unconstitutional, of course, do not mean that Florida residents have a free pass to possess drugs, because individuals will still be arrested if found in possession of an illegal substance. A drug possession defendant arrested in Florida today could, however, eventually escape prosecution or conviction if appellate courts ultimately agree with Judges Shelton, Hirsch and Brownell’s view of the statute.

UPDATEFlorida Supreme Court Upholds State Drug Laws