Florida State Judges Hold Florida’s Drug Laws are Constitutional, Despite a Federal District Court’s Ruling; Tallahassee Criminal Defense Lawyer Weighs in

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Although a federal Florida district court judge held in July the state’s controlled substance laws were unconstitutional because they violated due process, many circuit court judges are determining the laws are constitutional. Leon County criminal defense attorney Don Pumphrey, Jr. analyzes the controversy and the current status of the state’s drug laws.

Anyone who accidentally or mistakenly comes into possession of an illicit drug or substance, or who didn’t know the substance was illegal, could be charged with a very serious criminal offense, stated Florida criminal lawyer Don Pumphrey, Jr.

Many state trial judges throughout Florida have recently ruled Florida’s drugs statutes are constitutional, regardless of a federal district court judge’s opinion in July that the state’s controlled substance laws were unconstitutional.

According to an article written in the Baker County Press on September 1, 2011, several judges throughout Florida have determined that the state’s drug laws are constitutional and have denied motions requesting to dismiss pending drug sale and possession charges. These judges have reasoned the federal judge’s ruling does not apply to cases at the state circuit court level and will continue to follow binding state court precedent, unless the laws are overturned by the Florida Supreme Court.

Don Pumphrey, a drug defense lawyer in Tallahassee, stated, “Unlike the remaining 49 states, Florida’s statutory scheme for possession of a controlled substance does not require knowledge as an element of the offense. Anyone who accidentally or mistakenly comes into possession of an illicit drug or substance, or who didn’t know the substance was illegal, could be charged with a very serious criminal offense. Thousands of convictions and pending drug cases could be impacted by an ultimate decision on the law.”

On July 27, a federal judge for the U.S. District Court for the Middle District of Florida, Judge Mary Scriven, held that Fla. Stat. § 893.101 was unconstitutional because the law violated the Due Process Clause of the Fourteenth Amendment. Judge Scriven found that by eliminating mens rea, or a knowledge requirement, to any drug offense in Chapter 893 the substance was of an illicit nature, the law violated due process.

“The text of Section 893.101 of the Florida Statutes states knowledge that a controlled substance is an illegal substance is not a required element to prosecution for any drug offense in the Florida Drug Abuse Prevention and Control Act. Therefore, an individual who is charged under section 893.13 of the Florida Statutes for drug possession can be convicted of a drug offense, even if they didn’t know they had drugs or that the substance was illegal,” said Pumphrey, a Tallahassee attorney for possession of a controlled substance charge.

Florida’s current drug law, which was passed in 2002, eliminates any knowledge a substance was illegal for a defendant to be charged with and convicted of a drug law in the state. Florida is the only state that has removed knowledge as an element to any drug charges.

According to Pumphrey, “If an individual is convicted of any drug offense in Florida, they could possibly face severe penalties and punishments even if they accidentally or inadvertently committed the crime. This means that if someone borrowed their friend’s car they didn’t know had cocaine in the glove box, they could be convicted of a second degree felony offense and face years in prison for something they had no knowledge of.”

Depending on the type of substance, an individual charged with selling, manufacturing, delivering, or possessing with the intent to sell, manufacture or deliver any controlled substance under the Florida Drug Act could face a conviction for a felony of the first, second or third degree, or a misdemeanor of the first degree.

Under sections 775.082, 775.083 and 775.084 of the Florida Statutes, a felony of the second degree drug conviction can result in imprisonment up to 15 years and/or a fine up to $10,000. A conviction for a felony of the first degree drug offense can result in a prison sentence up to 30 years or life imprisonment and/or a fine up to $10,000, and a felony of the third degree drug conviction in Florida can result in a prison sentence up to five years and/or a fine not more than $5,000.

“Florida’s drug laws are unclear and need to be interpreted. The way the laws are currently written result in too many senseless drug convictions in this state. It is unclear what impact these judicial opinions will have, but every pending drug possession case and even misdemeanor marijuana cases could be affected. Florida’s archaic drug laws need to be amended and updated so innocent victims do not continue to be harshly prosecuted,” emphasized Pumphrey.

Since the federal judge’s July ruling, many defendants who have pending drug charges or who have been convicted under Florida’s drug statutes are seeking to have their cases dismissed or overturned. So far, only two circuit judges in Manatee County and Miami-Dade County have agreed Florida’s law is unconstitutional.

Don Pumphrey, Jr. of the Law Offices of Don Pumphrey, Jr. is a Tallahassee criminal attorney who represents those accused of drug and marijuana offenses, driving under the influence (DUI), and felony and misdemeanor crimes throughout the greater panhandle region of Florida, including Leon County and the surrounding areas of Jefferson County, Wakulla County, Liberty County and Gadsden County.

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