The Palm Beach Post reported today that a Federal judge declared Florida’s drug possession law unconstitutional. U.S. District Judge Mary S. Scriven of Orlando issued a ruling that criticized Florida’s drug law because it lacks a “mens rea” element, or an intent element. Generally, it is a basic principal of criminal law that in order for something to be a crime, there must be a mens rea (criminal intent) and an actus reus (action). For example, when it comes to the crime of Robbery, a person has to take property of some value from the body or custody of another person by force. This is the action element, or actus reus. But, to be a crime, it must also be done with the intent to deprive the owner of the property. This is the intent element or mens rea.
“It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree.”
When it comes to drug possession in Florida, the Government currently has to prove that the Defendant possessed a controlled substance (illegal drug) and that the Defendant had knowledge of the presence of the drug. However, when a person has exclusive possession of the substance (such as if it’s in her purse, pocket, or backpack), the jury can assume that the person had knowledge of the substance. This becomes a problem in a circumstance where say Person A puts his illegal cocaine in to the purse of Person B, without Person B having any idea. When the police find the cocaine in Person B’s purse, Person B will be criminally charged, even though she had no idea she was in possession of the drugs. A jury must assume that Person B knows what is in her purse under the current state of Florida’s law.
This may be changing in the near future if Judge Scriven’s ruling is upheld on appeal. Florida is currently the only state in the United States that does not have an intent element in its drug possession law. This lack of an intent element certainly calls into question the constitutionality of Florida’s drug possession laws and it’s about time the Courts take a closer look at this injustice.