Friday, July 13, 2012


The Florida Supreme Court ruled a few hours ago that Florida is a very special place. Here in Florida you can be prosecuted for possession of drugs without having any knowledge about the drugs. Despite a Federal Judge's courageous opinion finding that Florida drug laws are unconstitutional because due process requires knowing possession in drug cases, our Florida Supreme Court begs to differ. The tragedy of Florida drug laws for  Clearwater Criminal Defense Attorneys is that there is no requirement of knowledge even in trafficking cases where harsh drug sentences of three, ten and fifteen year mandatory minimum sentences are typical.
In every other state in America except Washington (where no knowledge is required for simple possession in close proximity, say a joint found in one's pocket) and in most civilized countries intent or knowledge of wrongdoing is the first requirement for any prosecution. The law destroys many more lives than the drugs ever could by creating a corrupt system of harsh punishments, prosecutions and false law enforcement drug investigations that remedies such as drug court have fail to correct.

Let's let our Judges speak for themselves, here are extracts from the majority opinion upholding the constitutionality of the Florida Drug Laws and below that see extracts from the Dissent:
Moreau, Prometheus, 1868
It is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result. The legislature may also dispense with a requirement that the actor be aware of the facts making his conduct criminal.... 
The elements of a crime are derived from the statutory definition. There are some authorities to the effect that infamous crimes, crimes mala in se, or common-law crimes may not be defined by the legislature in such a way as to dispense with the element of specific intent, but these authorities are suspect... In enacting section 893.101, the Legislature eliminated from the definitions of the offenses in chapter 893 the element that the defendant has knowledge of the illicit nature of the controlled substance and created the affirmative defense of lack of such knowledge. The statutory provisions do not violate any requirement of due process articulated by this Court or the Supreme Court. In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant.

And from the take no prisoners Dissent:

I cannot overstate my opposition to the majority's opinion. In my view, it shatters bedrock constitutional principles and builds on a foundation of flawed 'common sense.' (the majority opinion)...makes neither legal nor common sense to me, offends all notions of due process, and threatens core principles of the presumption of innocence and burden of proof....
What will become of the innocent? The answer to that question in the present context is as inevitable as it is disturbing. Under the majority's decision and the above examples, the innocent will from the start be presumed guilty. The innocent will be deprived of their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt. The innocent will instead be forced to assert an affirmative defense, whereupon 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...
There are many examples of drugs being in close proximity to someone where there was no knowledge such as the case of a man whose mechanic found a stash of half a million dollars worth of cocaine while fixing the breaks of a used van. The owner on being told what had been found in the used car said "my hands went numb," he's a lucky man because there's a Clearwater Criminal Drug Defense Lawyer who knows that if that man had been stopped in St. Petersburg, Largo or in Tampa Bay Florida he could be spending many years in prison or paying a hefty price in time and money to prove his lack of knowledge