By Regan McCarthy
http://stream.publicbroadcasting.net/production/mp3/wfsu/local-wfsu-996634.mp3
Tallahassee, FL – The Florida Supreme Court is considering whether the state's drug possession laws are constitutional, but Regan McCarthy reports two legislators say they plan to get the rule changed no matter what the court decides.
Under Florida's current law a person can be charged for possession and sent to jail regardless of whether they knew they carrying an illegal substance. Most states require for the person charged to have what's called "guilty knowledge," meaning to be charged a person would need to know they had illegal drugs. Some say the fact that that's not part of Florida's law violates the constitution and Assistant Public Defender Matthew Berstein says it could potentially land innocent people in jail.
"Given the pervasive nature of prescription medicines it would be very easy for someone to acquire Vicodin or some other controlled substance without knowing it to be vicodin or whatever it is. That's an easy example of that would happen in an everyday scenario."
In addition, the justices described a situation in which someone might borrow a bunch of spices from a friend. The person might think one of the packages contains oregano when really it's weed. Even though they have no idea they're carrying illegal drugs, they could still face criminal prosecution if discovered by police. But Chief Justice Charles Canady argues it's not likely something like that would happen.
"I concede that there can be unusual circumstances where somebody can plant something on somebody else. Okay, that's there. But in ordinary course of experience these are valuable things that the people who possess them will only give up for money or something else of value. They don't just go casting it about."
Canady points out that defendants are allowed to argue an "affirmative defense."
meaning the person being charged would be allowed to argue in court that he didn't know the stuff he had was illegal. And Justice Barbara Pariente says we hear it in the airport all the time don't take packages from strangers. But Republican Senator Ellyn Bogdanoff of Fort Lauderdale says the law as it stands just doesn't make sense.
"The scenario is I borrow somebody's car. In the trunk of their car they have drugs. First of all I may not even know that they have them there. But as it exists today with the current law, I could be put in jail for 3 to 15 years because I borrowed somebody's car."
Bogdanoff says it's not realistic to expect somebody to search their family member's car for drugs before borrowing it for a quick trip. She says she thinks prosecutors are using the law to catch bigger fish, but she says its violating the due process of the people in the meantime. She says her proposed bill would solve that problem.
"What we're simply trying to do is put intent back into the law and that's probably the most critical component. Or to provide judicial discretion as to whether or not somebody not only did they know, which is one part of the bill that the substance was illegal but also whether they intended to distribute that substance."
And Bogdanoff says she's working to create a compromise with law enforcement officers so they can do their job without incarcerating people who she doesn't think belong in jail. Among other things, Bogdanoff's bill would essentially reinstate the law's "intent" provision repealed by the legislature in 2002. Republican Erik Fresen, of Miami, is sponsoring a similar bill in the House.