Out of Order

A date night. A traffic stop. A bag of marijuana.

In 49 out of 50 states, the owner of the vehicle would face possession charges. But in Florida, the passenger could, too.

Thanks to a 2002 legislative revision of state drug laws, it’s not necessary for law enforcement to prove a passenger knew there were drugs in the car in order to charge her. Convictions are possible even in cases where there’s no evidence defendants knew about the presence of drugs.

What the 2002 law eliminated was the need to demonstrate mens rea — Latin for criminal intent or malice aforethought — and it opened the door to a new wave of drug charges. Since the law took effect, about 94,000 people have been imprisoned under it, according to the Florida Department of Corrections.

But in July, the law — which has rankled civil libertarians for years — was struck down by U.S. District Judge Mary Scriven, who called it “draconian and unreasonable,” as well as patently unconstitutional.

The ruling has prompted circuit court judges around the state to toss out pending drug cases, including dozens of cases in Miami-Dade and Manatee counties alone. In a Sept. 14 ruling, Manatee County Circuit Judge Scott M. Brownell dismissed cases against 42 defendants, calling state law unconstitutional on its face. The previous month, Miami-Dade Circuit Court Judge Milton Hirsch dismissed the cases of 39 defendants, even as he predicted it would unleash a storm of appeals and legal motions.

“[It] has produced a category-five hurricane in the Florida criminal practice community,” Hirsch wrote on Aug. 17. “A storm-surge of pretrial motions must surely follow.”

But while other jurisdictions have accepted the federal court’s decision, some Northeast Florida judges are holding firm to the old law. In early September, St. Johns County Circuit Judge Wendy Burger denied a motion to dismiss based on the federal judge’s decision, choosing to follow the law on the books.

“This court is duty-bound to follow the law as it is set out in the holding of the appellate courts of Florida on this issue,” Berger wrote, “and it will do so.”

Judges in Duval County have been similarly resistant. Jacksonville defense attorney Richard Kuritz, who has filed a motion seeking to have a drug case dismissed based on the mens rea issue, is awaiting a ruling from Duval County Circuit Judge Adrian Soud. But a motion filed by the opposing lawyer in the case suggests Kuritz shouldn’t hold his breath. Assistant State Attorney Rich Mantei noted in a countermotion that three similar mens rea cases have been denied in Duval County since August.

The fact that Northeast Florida’s conservative judicial district would support tougher drug laws is no surprise. (Judges in other jurisdictions, including Palm Beach, Indian River and several Panhandle counties, have also refused to dismiss charges.) But uniform resistance to a higher court’s ruling is unusual, particularly given the uncompromising language of the original ruling.

“Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense,” wrote U.S. District Judge Scriven in her July decision. “Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the ‘unknowing’ possession of a controlled substance.”

Scriven, an appointee of George W. Bush in 2008, gave the example of a student secretly placing drugs in another’s child’s backpack to avoid being caught with an illegal substance at school. Based on Florida law, the student with the backpack could be prosecuted. Jacksonville criminal defense attorney Janet Johnson says numerous defendants have faced similar circumstances: drugs left by someone in a rental car, in a car borrowed from a friend, or in a hotel room shared with other people.

The law allows for an affirmative defense — one in which a defendant has to prove that he was not in possession of the drugs, as opposed to the state proving he was in possession of the drugs — but Johnson notes that’s a real departure from the law as we know it. “It shifts the burden of proof to the defendant,” says Johnson, who has plans to draft mens rea motions on behalf of her clients. “In every other case, the state has the burden of proof.”

Miami-Dade Judge Hirsch echoed this concern in a ruling that quoted both Mark Twain and Shakespeare. “It reaches beyond those who willfully do wrong, beyond those who carelessly do wrong and includes within its wingspan those who meant no wrong,” he wrote.

But Attorney General Pam Bondi, who is appealing Scriven’s ruling, called her decision “flawed” and said it “unduly hinders prosecutor’s efforts to keep criminals off the streets.” Bondi’s appeal is part of what’s adding to the confusion at the lower court level.

Circuit Judge John Kastrenakes in Palm Beach County denied motions to dismiss charges against 24 defendants, saying, “There is a rational relationship between the legitimate governmental interest in addressing the drug problem and the elimination of the difficult-to-prove element of knowledge of a substance’s illicit nature.”

And Michael C. Overstreet, a Bay County circuit judge, denied motions for two defendants, likening the federal ruling to an invitation to chaos.

“Trial courts around the state have been invited to make an Alice in Wonderland-like journey, following a rabbit down a hole, where we discovered a world in which the doctrine of stares decisis [the legal precedent set by prior decisions] had been turned on its head,” Overstreet wrote. “This is a place where this court chooses not to go.”

Regardless of what circuit judges do, the issue will ultimately be decided by a higher court. Bondi appealed Scriven’s ruling, and last week the 2nd District Court of Appeals took the unusual step of expediting the case without ruling on it. Expressing concern about the “untenable situation” the federal ruling was causing due to differing interpretations by circuit court judges, the 2nd DCA urged the Florida Supreme Court take up the matter without delay. Calling it a matter of “great public importance,” the DCA added that the outcome, whatever it is, “will have a great effect on the proper administration of justice throughout the state.”

Ron Word

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