FindLaw KnowledgeBasePublished: 2011-10-28
A Florida criminal law that has been turning heads since 2002 will finally be reviewed by the state’s highest court if the Second District Court of Appeal (DCA) gets their way. In late September, the Second DCA asked the Florida Supreme Court to take up the issue of determining whether Florida’s Drug Abuse Prevention and Control Law (FDAPCL) is, as written, in violation of the Due Process clause of the Constitution.
What Is Wrong With the Law?
Attorneys and defendants alike have been wrangling about the law since it was passed in 2002 because it — unlike similar laws around the country — removed the element of intent (legally known as “mens rea”) from the law, essentially running the risk that otherwise innocent people could be convicted under the law. The statute is worded in such a way as to make it possible for defendants to be convicted of a felony-level charge for simple possession of an illegal drug, regardless of whether or not they:
- Knew the drug was there (particularly problematic in multiple-party dwellings)
- Knew the substance was illegal
- Had any intent to sell or otherwise distribute the substance
Why Should the Law Be Changed?
Tampa-based Florida Circuit Court Judge Scott Brownell recently issued a pointed opinion decrying the drug law, and gave three realistic (yet nightmarish for anyone unlucky enough to be caught up in them) scenarios in which the law would go far beyond its intended purpose of getting drug dealers off Florida’s streets and punish the innocent:
- A delivery person caught carrying a controlled substance ordered without a valid prescription
- A parent whose prescribed medication has been replaced by a drug-addicted child trying to avoid detection
- A roommate who has no knowledge that an illegal substance is concealed in a common area of his dwelling
While it may be possible that authorities would decline to press charges against any of the above unwilling lawbreakers, the fact remains that the statute — when strictly interpreted — does make their actions criminal. That fact alone gives defense attorneys and legal experts pause; it also keeps the battle going to get the law revised.
In the meantime, however, prosecutions under the law are disturbingly common. If you or a loved one is facing charges under the FDAPCL, you need a skilled and aggressive criminal defense attorney at your side to protect your rights and fight for your freedom.