"Florida's drug laws are some of the toughest in the nation," said Gainesville drug lawyer, Dean Galigani. "Florida is one of only two states where the burden of proof of lack of knowledge lies on the defendant and not on the state."
Gainesville, FL (PRWEB) December 11, 2012
Earlier this year, the 11th Circuit Court of Appeals in Atlanta reversed a lower federal court in Orlando that had found Florida’s Comprehensive Drug Abuse Prevention and Control Act (DAPCA) to be unconstitutional in Shelton v. Secretary, Department of Corrections (691 F.3d 1348 (2012)). The law, originally passed in 2002, removed knowledge as an element in many drug related crimes, meaning the state no longer had to prove someone accused of possessing drugs knew of the “illicit nature” of the drugs.
Gainesville defense attorney, Dean Galigani, has over 20 years of experience in criminal defense and is Board Certified in Criminal Trial Law by the Florida Bar. He explains, "The ruling is certainly going to affect innocent people charged with drug crimes throughout Florida. After the most recent Florida law change, a person may be found 'in possession' of drugs, regardless if he or she knew the drugs were illegal.”
The dispute regarding the constitutionality of the Florida drug law has heated up significantly in the past two years, Galigani said. In State v. Adkins (71 So. 3d 117 (2011)), the Florida Supreme Court upheld DAPCA as constitutional, stating the legislature has broad authority to define crimes. The Court also wrote that Due Process is not violated by the Florida law since those accused under the law can use lack of knowledge as an affirmative defense.
Two weeks after the Florida Supreme Court decided Adkins, the case of Shelton made its way up the appeal ladder and was decided in Orlando, in the U.S. District Court for the Middle District of Florida. In Shelton, Judge Mary Scriven held DAPCA unconstitutional on its face as a violation of Due Process. Judge Scriven wrote “…Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the ‘unknowing’ possession of a controlled substance.” “Without an element of knowledge, the crime as written by the legislature becomes a strict liability crime—one for which you can be punished without knowing you were doing anything wrong,” says Dean Galigani. The Orlando court held that the law as written is overbroad, meaning it regulates otherwise innocent conduct.
Judge Scriven's ruling addressed the legislature’s alteration of the particular aspect of mens rea, or 'guilty mind', from an element of the crime into an affirmative defense. The ruling brought about thousands of criminal drug crime appeals in Florida. One state Circuit Court judge in Manatee County granted motions to dismiss charges in 46 criminal cases filed under Section 893.13 of the Act.
However, as a result of what happened next, those cases have now been reversed. A month later, the 11th Circuit Court of Appeals’ decision in Shelton undid everything that Judge Scriven in Orlando had done. The 11th Circuit reversed Judge Scriven’s decision and instead held DAPCA constitutional. The Court said the legislature has wide latitude to define the elements of a crime, and here the Florida legislature only partially eliminated knowledge as an element of the crime. It found that the Florida Supreme Court in Adkins had not been unreasonable in its interpretation of the law and its holding that DAPCA is valid law.
Many see this line of decisions as reversing the burden of proof from prosecution to the defendant. "Florida's drug laws are some of the toughest in the nation," said Gainesville drug lawyer, Dean Galigani. "Florida is one of only two states where the burden of proof of lack of knowledge lies on the defendant and not on the state."
Dean Galigani continues, “There are many examples of innocent possession that would be criminal under this law. Some examples include a driver who rents a car where the last renter left illegal drugs in the console, or a student storing a bookbag in her locker for a friend who was hiding illegal drugs in the bookbag. These possessions, while completely unknown to the accused, would now be criminal.”
As a result, under Florida law a person can be arrested and charged for possession of a drug, even if he or she lacks knowledge of the illicit nature of the substance. This can happen if someone picks up the wrong luggage at an airport on accident that has prescription pills in it, among a long list of other plausible scenarios. “The innocent will have to bear a large burden of time and expense to conduct discovery, calling witnesses, and otherwise craft a case for their innocent lack of knowledge, all while the state—the party with superior resources and ability to investigate—should be the one to bear the burden of proving guilt,” according to Dean Galigani, a Florida Bar certified, drug possession attorney. "Unfortunately, these crimes are serious offenses that can have harmful consequences on a person's future.”
Dean Galigani is a Gainesville criminal defense attorney with over 20 years experience fighting to protect the rights of men and women accused of drug possession and other crimes across Florida. He is board certified in criminal trial law and represents one of the approximately 300 attorney's in the state of Florida with this prestigious recognition. These lawyers are the only attorneys in the state allowed to call themselves experts or to say that they specialize in his/her particular area of certification.