Federal Judge Throws Out Florida’s Drug Law

A federal judge ruled July 27 that Florida’s drug law was unconstitutional, leaving thousands of criminal cases up in the air. US District Court Judge Mary Scriven of Orlando threw out the Florida Drug Abuse Prevention and Control law on the grounds that it violates due process because it does not require prosecutors to prove a person knew he or she possessed illegal drugs.  In 2002, Florida legislators amended the state’s drug law, eliminating the requirement that prosecutors prove mens rea, or criminal intent, as part of obtaining a conviction. Florida was the only state in the nation to not require mens rea as part of a drug conviction.

“Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense,” Scriven wrote in her order. “Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the ‘unknowing’ possession of a controlled substance.”

The ruling came in the case of Mackle Vincent Shelton, 33, who was convicted in 2005 of drug charges in Osceola County. Shelton, who is currently serving an 18-year prison sentence for cocaine delivery and other charges, appealed his conviction on the grounds that the jury wasn’t required to consider intent in order to convict him.

In his instructions to the jury in Shelton’s case, the trial judge told jurors that “to prove the crime of delivery of cocaine, the state must prove the following two elements beyond a reasonable doubt: that Mackle Vincent Shelton delivered a certain substance; and, that the substance was cocaine.” The state did not have to prove that he knew he was carrying or distributing cocaine or any controlled substance at all.

The National Association of Criminal Defense Lawyers (NACDL), which filed an amicus curiae brief in the case, pointed out that without the criminal intent requirement, “a Federal Express delivery person who unknowingly delivers a parcel containing a controlled substance, would be presumed a felon under Florida’s drug law.” Joining the NACDL in filing the brief, which was favorably cited by the court, were the Florida Association of Criminal Defense Lawyers, the ACLU of Florida, the Drug Policy Alliance, the Calvert Institute for Policy Research, and 38 professors of law.

Florida defense attorneys applauded the ruling, saying the impact could be huge. Several told the St. Petersburg Times they intended to file motions seeking dismissal of pending drug cases, citing the judge’s order.

“It has one of the largest potential effects on criminal law in the past decade,” said St. Petersburg lawyer Jeff Brown. “We’re talking hundreds of thousands of drug cases.”

“In declaring the statute unconstitutional on its face, it appears that all drug prosecutions in the state are at risk,” said Tampa defense lawyer Eddie Suarez.

That’s tough, said Tampa attorney James Felman, who represented Shelton. Legislators should not have written an unconstitutional law removing mens rea, he said. “It takes the presumption of innocence and throws it in the garbage can,” Felman said. “I think the legislature must immediately fix the statute,” he said. “This is not a close call. No state has ever done this before. Legally, it’s beyond the pale.”

“This is a victory for the most fundamental notions of fairness and justice in our system — the idea that no one should suffer a conviction unless the state proves criminal intent beyond a reasonable doubt,” said NACDL executive director Norman Reimer. “As I previously said about this case, the country has been drifting away from the moral anchor of a clearly defined mens rearequirement in its criminal laws. Laws like these would run it aground.”

Orlando, FL

United States

by Phillip Smith, July 29, 2011, 03:49pm, (Issue #695)

source

Determine your blood alcohol level here – Drunk Driving Legal Alcohol Limits

Get Out of Jail NOW!

What is a Field Sobriety Test? Get info here

Standardized Field Sobriety Testing

Arrested? Get Out Now! Broward Bail Bonds

The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP.

The three tests of the SFST are:
1. the horizontal gaze nystagmus (HGN)
2. the walk-and-turn
3. the one-leg stand.

These tests are administered systematically and are evaluated according to measured responses of the suspect.

HGN Testing

Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidline, a variety of inhalants, barbiturates, and other depressants.

Divided Attention Testing

The walk-and-turn test and one-leg stand test are “divided attention” tests that are easily performed by most sober people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater. The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony. Because SFST is administered according to national standards and is supported by significant research, it has greater credibility than mere subjective testimony.

Alternative Testing Methods

Sometimes, an officer will encounter a disabled driver who cannot perform the SFST. In such cases, some other battery of tests such as counting aloud, reciting the alphabet, or finger dexterity tests may be administered. If the proper motions are filed, these test are usually not admissible at trial.

If someone you know has been arrested for Driving Under the Influence in Florida For more information email browardbail@gmail.com

source