You may already know that when you are charged with a crime in Florida, the burden is wholly on the State to prove each element of the crime beyond and to the exclusion of all reasonable doubt. The defense does NOT have prove anything. But let’s look at the Statutes. Florida Statute 893.101 tells us that “knowledge of the illicit nature of a controlled substance” is not an element of any offense under chapter 893. But then the statute also tells us that “lack of knowledge of the illicit nature of a controlled substance” is an affirmative defense to any offense charged under 893. The two sound conflicting, don’t they? From this conflict, case law continues to evolve as to the constitutionality of Chapter 893.
To be found guilty of the crime of possession of a controlled substance (let’s say cocaine, for example), the State has to prove that you had “guilty knowledge” of the cocaine. This involves a two-part analysis: (1) knowledge of the presence of the substance; and (2) knowledge of the illicit nature of the substance. So a person might know there is a small powder-like substance in the car with them, but if they don’t know that powder-like substance is illegal to possess (e.g., cocaine, cannabis, hydrocodone, etc.), they do not have the “guilty knowledge” required for a guilty verdict. In other words, they do not possess the requisite mens rea or criminal intent.
So where are we then? If you merely possess cocaine or cannabis or hydrocodone, without more, there is insufficient mens rea or criminal intent. To hold otherwise would mean that this is a strict liability offense. If you have it on you, you’re guilty. And that’s not right. Imposition of a felony punishment for a strict liability offense violates due process. So if you find yourself charged with a felony possession of a controlled substance charge, talk to your defense attorney about the knowledge element and see if he or she is aware of the two-part analysis. For more, see Shelton v. Secretary, Dept. of Corrections, 23 Fla. L. Weekly Fed. D11a (2011).
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