Criminal Defense
Since 1993
Since 1993
How Did Florida’s Legislature Pass an Unconstitutional Drug Law?
Yes, Florida’s drug law has been declared unconstitutional, and a judge in Miami just dismissed 39 felony cases a few days ago (more dismissals to come, for sure). This big fight is about the fact that–under our current drug laws–a citizen can be imprisoned drug possession without the state ever proving that he had at least some idea of what it was he possessed! Imagine how many mailmen could be arrested under our laws (we all know people send drugs via express mail, right?)….
State legislatures can be somewhat of a reactionary body. The now “unconstitutional drug law” came about in 2002, and to read it is to understand what the legislature was reacting to when they decided that Florida would be the only state out of 50 to do this:
Florida Statute 893.101, (2002) reads:
(1) The … cases of Scott v. State and Chicone v. State, 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) … [K]nowledge 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.”
So, why did our laws change? It all started with the Florida Supreme Court decisions of Chicone v. State, 984 So. 2d 736 (Fla. 1996), and Scott v. State, 808 So.2d 166 (Fla. 2002). Not one decision. Two decisions. Our Florida Supreme Court held twice that “mens rea” (guilty knowledge, scienter, etc.) must be read into our Florida drug laws, reasoning that, surely, the legislature must have meant to enact a legal drug law–but in order for it to be legal, it needed mens rea. Back in 2002 did they take the hint?
Here’s a paraphrased re-enactment, “based on a true story, sort of”
FL SUPREME COURT: Your 893 drug law sucks so bad, you must have just forgotten the whole “mens rea” thing, so we’ve got to read into it “mens rea”.
FL LEGISLATURE: B**ch, you’re not the boss of me, that “constitution” is just words on a page–we can write words too!!! The law is whatever we say it is….
Obviously, the legislature back in 2002 didn’t want to be told what to do by the Florida Supreme court. Thus the 893 statute listed above specifically complains that Chicone and Scott were contrary to their legislative intent. Wah. A news flash for our legislature–the constitution places limits on your law making powers. As noted in the Dade County court’s opinion by Circuit Court Judge Hirsch, “The Due Process Clause of the 14th Amendment to the United States Constitution places limits on the power of the states to impose criminal punishment for conduct as to which criminal intent need not be pleaded or proven.” Any questions?
So, who’s next? Will an Orlando court, Seminole county court, Osceola? Who will be next in dismissing felony cases of sale & delivery, possession, or trafficking? …More to come.