Yesterday, July 27, 2011, Federal District Court Judge Mary Scriven declared the criminal section of Florida’s Drug Abuse Prevention and Control Act (893.13) to be unconstitutional on its face. (See Shelton v. Department of Correction, et. al., Case No.: 6:07-cv-839-Orl-35-KRS (United States District Court, Middle District of Florida, July 27, 2011). It would appear that this opinion, if upheld, renders all current drug prosecutions in Florida subject to dismissal and all convictions since 2002 subject to being vacated.

In 2002 the Florida Legislature amended section 893.13 of the Florida Statutes by removing knowledge as an element of the possession, manufacture or delivery of a controlled substance. In doing so, Florida became the only state in country in which possession of a controlled substance was a strict liability crime. In other words, in Florida, and only in Florida, the unknowing possession of a drug is a crime.

Judge Scriven, in a carefully and thoughtfully crafted opinion, explains how this ill-considered amendment by state legislature has rendered the statute violative of the Due Process requirements of the United States Constitution. As Judge Scriven explained, “Under this analytical framework, FLA. STAT. § 893.13 cannot survive constitutional scrutiny when considered in relation to the conduct it regulates—the delivery of any substance. To state the obvious, there is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances: carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation—the list extends ad infinitum. Under Florida’s statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer’s knowledge or intent.”

It will be interesting to see how the Eleventh Circuit Court of Appeals rules on this issue and how it all ultimately unfolds, but for now this is triumph for the time-honored limitations imposed by the United State Constitutions on the ill-considered, reactionary actions of a small minded legislative body.

A word of gratitude should go to Jim Felman and Katherine Yanes for extraordinary legal work in this case.

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