Recently, a federal court ruled that Section 893.13, part of the Florida Comprehensive Drug Abuse Prevention and Control Act was unconstitutional because it did not require “knowledge” as an element of the criminal offense.  What does that mean?  Basically, it means that the prosecutor, in order to convict of numerous drug crime such as possession of a controlled substance, does not have to prove that the arrested person knew they were in possession of drugs.  So, if you held a sealed envelope in your hand that contained cocaine, marijuana, methamphetamine, but did not know what was inside the envelope, you would be guilty under Florida’s drug law of possession of a controlled substance and could face felony or misdemeanor charges.  For example, two people conspire to sell drugs to each other by mail.  The drug seller seals the drugs in an envelope and asks his mom to mail the envelope for him as she is on her way to run errands.  Under this scenario, the seller and buyer would be guilty of possession of a controlled substance, but so would the mom!  She had possessed the drugs and had dominion and control over the drugs!  That is all Florida criminal law requires for a person to be guilty of possession of a controlled substance.  Mom would have to prove she did not know drugs were in the envelope! (There is an exemption for common carriers, medical professionals, etc. in the statute under Florida Criminal statute 893.13(9), but the defendant will have to prove to the prosecutor they are entitled to this exception for the criminal charges to be dismissed.)

This problem came about when the Florida legislature amended Florida’s drug law stating “The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.”   This eliminated knowledge as an element of the criminal offense in drug cases and made it an affirmative defense.  Meaning the defendant would have to prove he or she did not have knowledge that he was possessing a controlled substance (marijuana, Xanax, etc.)

The Florida Supreme Court held “Any concern that entirely innocent conduct will be punished with a criminal sanction under chapter 893 is obviated by the statutory provision that allows a defendant to raise the affirmative defense of an absence of knowledge of the illicit nature of the controlled substance. In the unusual circumstance where an individual has actual or constructive possession of a controlled substance but has no knowledge that the substance is illicit, the defendant may present such a defense to the jury…Under section 893.13, as modified by section 893.101, the State is not required to prove that the defendant had knowledge of the illicit nature of the controlled substance in order to convict the defendant of one of the defined offenses.

This is just another example of the over-criminalization of conduct in the United States and Florida through strict liability crimes.  Hopefully, the United State Supreme Court will accept this case on appeal as it wears down on an arrested individual’s right to be innocent until proven guilty and for a criminal defendant not be required to prove his or her innocence.

If you have been charged with a drug offense such as:

  • Possession of a controlled substance (meth, Xanax, marijuana, etc.)
  • Possession of drugs with intent to sell
  • Possession within 1000 feet of a school or church
  • Trafficking in drugs
  • Constructive possession of drugs (controlled substance)
  • Manufacture of a controlled substance (i.e. manufacture of methamphetamine)
  • Sale of a controlled substance
  • Delivery of a controlled substance

Immediately call and speak to Thomas Grajek, an aggressive criminal defense lawyer experienced in handling all drug charges.

What is your best defense to a criminal charge involving drugs that could result in you losing your driver’s license for two (2) years and, if charged with certain drugs, a convicted felon?



Handling all criminal cases in Polk County, Florida including Bartow, Lakeland, Winter Haven, Auburndale, Haines City, and Davenport.

Tags: cannabis cocaine controlled substance marijuana meth possession drugs possession with 1000 feet sale of drugs


Jul 2012


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