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Court won’t affect push for Fla. drug law change

BILL KACZOR, Associated Press
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 TALLAHASSEE, Fla. (AP) — After state Supreme Court oral arguments Tuesday, sponsors of legislation to change Florida’s drug law said they will push the measure regardless of how a constitutional challenge turns out.

A decision striking down the law could free hundreds — if not thousands — of prison inmates, according to an appellate court that handed the case to the justices without ruling so it would get a quick resolution in Florida’s highest court.

The state is appealing a Manatee County judge’s decision that struck down the 2002 law. Circuit Judge Scott Brownell ruled it violates due process rights because it eliminated a requirement that defendants must know that a substance they possessed, manufactured or distributed was an illegal drug.

The legislation would restore that element of proof at least in trafficking cases. Sen. Ellyn Bogdanoff, R-Fort Lauderdale, and Rep. Erik Fresen, R-Miami, said they will seek passage of their bills (SB 732, HB 561) even if the high court upholds the existing law.

“But it would help if they find it unconstitutional,” Bogdanoff said.

Brownell’s decision, which dismissed charges against 42 defendants, was similar to an earlier ruling by a federal judge, which is also being appealed. If the state justices and 11th U.S. Circuit Court of Appeals in Atlanta should disagree, the issue likely will go to the U.S. Supreme Court.

The Florida justices did much of the talking during oral argument, often reducing the lawyers to little more than sound bites before the judges asked new questions.

Chief Justice Charles Canady left little doubt about his opinion of the law as he questioned Assistant Public Defender Matthew Bernstein of Bartow, who argued the law is unconstitutional.

“Isn’t the reality here that these drugs that are illicit are valuable and the people who own them don’t just go casting them about at random?” said Canady, one of the high court’s most conservative members and frequently in the minority.

Before Bernstein could answer, Canady noted the law lets defendants try to prove they didn’t know the substances they are accused of possessing were illegal and said “the scheme to me to makes a lot of sense.”

Bernstein responded that the law still has the potential of criminalizing innocent activity. He cited such examples of someone stepping on white powder and not knowing if it’s cocaine or something more innocent or obtaining pills composed mostly of legal drugs but unknowingly include a controlled substance.

Forcing defendants to testify or present evidence they didn’t know a substance was illegal violates their right to remain silent, Bernstein said.

“That turns upside down the presumption of innocence,” he argued.

Justices Peggy Quince, Jorge Labarga and James Perry echoed Bernstein’s argument in questions to Assistant Attorney General Diana K. Bock, who defended the law, while Justice Barbara Pariente was equally tough on both lawyers.

Bock said the law was passed as part of the “war on drugs” to deal with unusual circumstances.

“In that war the citizens of the state have a call to duty,” Bock said. “It is their responsibility to know when they take possession of something elicit. It is their responsibility to find out.”

Bogdanoff said she wished she could have argued with Canady.

“As a lawyer, I have problems constitutionally with forcing a party to prove their innocence versus the state proving guilt,” she said. “We’re shifting that burden to potentially an innocent person, which I believe is against everything our constitution stands for.”

 Copyright 2011 The Associated Press.

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