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Judge backs Florida drug possession law, but lawyers' fight goes on

BROOKSVILLE — Defense attorneys didn't win the battle in court Wednesday, but the war over the state's drug possession rule isn't over.

For the second time this month, lawyers from around the state presented motions in a Hernando County courtroom asserting that the Florida's Drug Abuse Prevention and Control law violates the due process clause of the U.S. Constitution's 14th Amendment. At least three Florida judges — one in federal court and two at the circuit level — recently ruled that the statute was unlawful.

Here, Chief Circuit Judge Daniel Merritt Sr. questioned the statute's constitutionality, but he ultimately denied the motions, noting that two of Florida's five District Courts of Appeal have decreed that the rule is constitutional.

In an interview before the hearings this month, prosecutor Donald "Sonny" McCathran said Merritt would be bound by those decisions.

Still, Brooksville attorney Jimmy Brown, among those who filed the motions, wasn't discouraged by the judge's decision.

"The judge said that he agrees with a lot of the points that I raised," Brown said. "And he has significant questions about the viability and the constitutionality of the statute."

Under the law, defendants can be convicted of a felony merely by possessing an illegal drug, regardless of what they mean to do with it or if they even knew what they had is illegal.

The law was created nearly 10 years ago in response to a Florida Supreme Court order that judges should always instruct juries to consider defendants' intent when deciding their guilt or innocence on drug possession charges. Lawmakers in 2002 amended the statute, becoming the only state in the nation to eradicate "guilty knowledge," also called mens rea.

The attorneys argue that stipulation makes the statute invalid, and two recent rulings supported their motions: one in August by South Florida Circuit Judge Milton Hirsch and the other on Friday by Tampa-area Circuit Judge Scott M. Brownell.

The statute "does not punish the drug dealer who possesses or delivers controlled substances. It punishes anyone who possesses or delivers controlled substances, however inadvertently, however accidently, however unintentionally," Hirsch wrote in his opinion.

"It reaches beyond those who willfully do wrong, beyond those who negligently do wrong, beyond those who carelessly do wrong, and includes within its wingspan those who meant no wrong."

Brownell further illustrated the point in his opinion, offering three feasible situations in which a person might inadvertently violate the law but still be convicted of the crime: A letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person sharing his apartment has hidden illegal drugs in the common areas of the home; a mother carrying a prescription pill bottle in her purse, unaware that the medication has been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.

"As the examples illustrate," Brownell wrote, "even people who are normally diligent in inspecting and organizing their possessions may find themselves unexpectedly in violation of this law, and without the notice necessary to defend their rights." Inevitably, the Brooksville attorney Brown said, the Florida Supreme Court will rule on this issue and, as an extension, determine whether the 97,000 people convicted of the crime since 2002 should be exonerated.

"We're going to get there," Brown said. "It's just a question of when."

John Woodrow Cox can be reached at (352) 848-1432 or jcox@sptimes.com.

Judge backs Florida drug possession law, but lawyers' fight goes on 09/21/11 [Last modified: Wednesday, September 21, 2011 10:54pm]
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