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Are Drug Charges in Florida Really Unconstitutional?

Cases throughout Florida may end up coming unraveled if judges take note of what courts in Miami and Manatee County have done recently with drug cases that have been ruled unconstitutional, the Sarasota Herald-Tribune reports.

Cases of drug possession and drug sales may be dropped after Judge Mary Scriven, of the U.S. Middle District of Florida, ruled that Florida’s drug possession statute is unconstitutional because it lacks the element of intent — opponents argue that violates due process because it puts the legal burden on the defendant. Three circuit court judges have now asked the Florida Supreme Court to address the constitutionality question of Florida Statutes Section 893.13.


A Fort Lauderdale criminal defense attorney who is familiar with recent case law can often use evolving law to a client’s advantage. These precedent setting cases typically start at the¬†trial-court level¬†when a defendant and experienced lawyer see a legal issue that permits them to fight the charges.

In this case, the federal judge used a three-part test from the U.S. Supreme Court to analyze the statute: Whether the penalty imposed was slight, whether conviction resulted in substantial stigma, and whether the law regulates substantially dangerous or deleterious conduct. Clearly, a conviction of drug possession or drug trafficking fails this test.

The concept is simple: As the law stands, a UPS driver or U.S. Postal Service mail carrier could technically be charged with possession of prescription drugs if they are unknowingly delivering medicine to someone who doesn’t have a prescription. Obviously, that isn’t the intent of the law.

Thousands of drug cases swing in the balance as judges face the unconstitutionality of the law that currently guides them. Miami-Dade Circuit Judge Milton Hirsch has already cited the ruling in declaring the state law unconstitutional and dismissing 39 drug possession cases. In Manatee County, a judge recently dismissed charges against 42 defendants.

The Manatee judge wrote that there are many examples of a person being charged with possession of drugs, such as a roommate who has no knowledge that someone else has illegal drugs in the house. Lawmakers eliminated the intent part of the law in 2002.

Judges in other areas of the state are expected to take up the issue in the coming weeks as knowledgeable defense lawyers in Fort Lauderdale, Fort Myers use the ruling in the defense of clients facing drug charges in Florida. Meanwhile, the 2nd district court of appeal in Lakeland, Florida has sent a certified question to the Florida Supreme Court to ask the Court get involved and rule on the issue.

If you are in need of a defense lawyer, feel free to call our office to address any concerns you may have at 954.524.2424 in Fort Lauderdale or our Fort Myers office at 239.277.0005. The Garvin Injury Law has two locations to best serve the needs out clients throughout South and Southwest Florida.

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