“Shelton” and the Trafficking Loophole: Does the “Unconstitutional” Ruling Save Traffickers?

By: John Guidry

WARNING: THIS IS SOME BORING, BUT NECESSARY CRIMINAL DEFENSE ANALYSIS. DO NOT READ WHILE OPERATING HEAVY MACHINERY.

With the federal court’s decision in Shelton finding Florida’s drug laws unconstitutional, and a Florida Circuit Court Judge in Dade County agreeing this week to dismiss over 30 felony drug possession cases, the next logical question is: Does Shelton carry over to Trafficking and other drug cases?

The Shelton decision was actually on a Delivery of Cocaine charge. But technically, the decision declared Florida Statute Section 893.13 unconstitutional.

• The Difference: Trafficking laws are found in a different section: 893.135.
• The Conflict: One major difference is that 893.13 (Possession/Sale) does not contain the mens rea or “knowing” element—that element was intentionally left out by the Legislature (which is why Shelton found it unconstitutional).

Are you charged with Trafficking under the confusing Florida statutes?

The law is shifting fast. Call John today at (407) 423-1117.

The “Knowing” Paradox

Oddly enough, the Legislature left the “knowing” element in the Trafficking Statute (893.135).

• The Argument: Could the State argue that because the “knowing” element is still written in the trafficking statute, it survives the Shelton ruling?
• The Reality: Not really.

The problem here is that even though Shelton (and one brave judge in Dade County) found 893.13 unconstitutional, the real villain is Florida Statute 893.101(2).

• The Statute: 893.101 states that for all offenses in Chapter 893, “knowledge of the illicit nature of the substance is not an element of any offense.”
• The Interpretation: Even though the Trafficking statute is the only one to include the word “knowing,” the rules of statutory construction dictate that 893.101 controls the whole chapter.

So, what “Knowing” is left? It is possible that the “knowingly” in the trafficking statute refers only to knowing the presence of the substance, not its illicit nature. So, who knows? We’ll see soon, I’m sure.

John’s 2026 Update: The Empire Struck Back (State v. Adkins)

Note: In the article above, I hoped Shelton would force Florida to adopt fair laws. I was wrong.

1. Shelton Was Overturned The 11th Circuit Court of Appeals eventually reversed the Shelton decision. They ruled that Florida is allowed to remove the “Guilty Knowledge” element from drug crimes if they want to.

2. State v. Adkins (The Final Nail) The Florida Supreme Court settled the matter in State v. Adkins.

• The Ruling: They upheld the constitutionality of Florida’s strict liability drug laws.
• The Law in 2026: The State does NOT have to prove you knew the substance was illegal (e.g., that you knew the pills were Oxycodone). They only have to prove you knew the item was there.

3. The “Affirmative Defense” Burden So, does “Knowing” matter at all? Yes, but the burden has shifted to YOU.

• The 2026 Rule: “Lack of Knowledge of Illicit Nature” is now an Affirmative Defense.
• How it Works: You have to admit you possessed the drugs, and then prove to a jury (by a preponderance of the evidence) that you honestly didn’t know they were illegal. This is much harder than making the State prove you did know.

The Law is Strict. You Need a Strategy.

Florida is the only state in the nation with this harsh “Strict Liability” drug law. If you are caught with trafficking amounts, you cannot rely on the State failing to prove you knew it was drugs—you have to actively prove your innocence.

Call me at (407) 423-1117. Let’s build your Affirmative Defense.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.