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Florida's Drug Law Unconstitutional: Lacks Element of Intent

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By Cynthia Hsu, Esq. on August 01, 2011 6:47 AM

A U.S. District Judge has ruled that the Florida drug law is unconstitutional. Judge Mary Scriven declared that the drug law violates the constitution because the Drug Abuse Prevention and Control Act has no intent requirement.

In 2002, the Florida legislature essentially eliminated the "mens rea," or intent requirement of the drug law.

Essentially, the Florida drug law made it so that offenders could be convicted of a drug offense such as possession or distribution regardless of their mental state.

For example, a person could be convicted of selling drugs even if they legitimately had no knowledge that what they were selling was illegal drugs, reports The Wall Street Journal.

Most criminal laws have an intent requirement, so that the perpetrator must have, for example, knowingly, recklessly, maliciously or willfully committed a crime in order to be convicted. This "intent" would need to be proved by the prosecutor if the case is brought to trial, and is considered an element of the crime.

If a crime does not have an intent requirement, it's a strict liability offense, meaning that the person is guilty regardless of his mental state at the time the crime was committed. In essence, the Florida drug statute was a strict liability offense, as it had no intent requirement.

There are some crimes that are strict liability offenses that are not unconstitutional, like statutory rape. However, in Judge Scriven's order, she specifically pointed out that the law places severe constraints on what can constitutionally be a strict liability offense: the penalty imposed must be slight, the conviction does not result in substantial stigma, and the statute regulates "an inherently dangerous or deleterious conduct."

And, according to Judge Scriven's order, Florida's Drug Abuse Prevention and Control Act failed on all three levels, making the Florida drug law unconstitutional. For now, however, the state's Attorney General's Office is considering what steps to take - if any - to contest the ruling, reports The Wall Street Journal.

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