“You’re Not the Boss of Me”: How the Florida Legislature Wrote an Unconstitutional Drug Law

By: John Guidry

Yes, Florida’s drug law has been declared unconstitutional. A judge in Miami just dismissed 39 felony cases a few days ago (with more dismissals to come, for sure).

The Fight: This big fight is about the fact that—under our current drug laws—a citizen can be imprisoned for drug possession without the State ever proving that he had any idea what he possessed.

• The Nightmare Scenario: Imagine a mailman delivering a package. We all know people send drugs via Express Mail. Under Florida law, if that package has cocaine, the mailman is guilty of Trafficking—even if he thought it was a sweater. The State doesn’t have to prove he knew it was drugs.

Charged with possession of something you didn’t know was there?

The law is unfair, but we have defenses. Call John today at (407) 423-1117.

The Legislature’s Tantrum (A Re-enactment)

State legislatures can be a reactionary body. The “unconstitutional” law (Florida Statute 893.101) came about in 2002. To read it is to understand exactly what they were reacting to.

The Background: In Chicone v. State (1996) and Scott v. State (2002), the Florida Supreme Court held that the State must prove “Mens Rea” (Guilty Knowledge). They reasoned that for a law to be constitutional, you have to prove the guy intended to break it.

The Reaction (2002): Back in 2002, did the Legislature take the hint? No. Here is a paraphrased re-enactment (based on a true story, sort of):

• FL SUPREME COURT: “Your drug law sucks because you forgot the whole ‘Mens Rea’ thing. You can’t put people in prison if they didn’t know they were committing a crime.”
• FL LEGISLATURE: “B**ch, you’re not the boss of me! That ‘Constitution’ is just words on a page. The law is whatever we say it is!”

So, the Legislature passed F.S. 893.101, which explicitly says:

“The cases of Scott and Chicone… were contrary to legislative intent… Knowledge of the illicit nature of a controlled substance is NOT an element of any offense.”

The Ruling: Judge Hirsch Strikes Back

Fast forward to today. Circuit Court Judge Milton Hirsch in Miami read that statute and essentially said: “Nice try, but you still have to follow the Constitution.”

Judge Hirsch ruled:

“The Due Process Clause of the 14th Amendment places limits on the power of the states to impose criminal punishment for conduct as to which criminal intent need not be proven.”

The Result: He dismissed 39 felony cases. Why? Because Florida is the only state out of 50 that tries to lock people up without proving criminal intent.

Who’s Next? Will an Orlando or Osceola judge be next to dismiss felony trafficking cases? We are filing the motions as we speak.

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

Note: The victory described above was short-lived. The State appealed, and the higher courts crushed our hopes.

1. The Law was Upheld (State v. Adkins) Ultimately, the Florida Supreme Court ruled in State v. Adkins (2012) that the Legislature does have the power to remove “Mens Rea” if they want to.

• The Reality in 2026: Florida Statute 893.101 is the law of the land. The State does not have to prove you knew the substance was illegal. Florida remains an outlier, but it is “constitutional” according to our courts.

2. The “Affirmative Defense” Trap Because the State doesn’t have to prove Intent, the burden shifts to YOU.

• The Law: “Lack of Knowledge” is an Affirmative Defense.
• What this means: If drugs are found in your backpack, the jury is instructed to presume you are guilty unless you can prove (by a preponderance of the evidence) that you didn’t know they were there. You have to prove a negative to stay out of prison.

3. The “Blind Mule” Defense In 2026, this law is most dangerous for drivers and couriers.

• Scenario: You drive a friend’s car. Police find Fentanyl in the trunk. The State doesn’t need to prove you knew it was there to charge you with Trafficking (25-year minimum mandatory).
• Our Defense: We use digital forensics (text messages, GPS location) to prove you were a “Blind Mule”—someone used by the real dealer to take the fall. We have to affirmatively prove your innocence because the State no longer has to prove your guilt on the “Knowledge” element.

The Burden is on You (So Get a Good Lawyer)

Florida’s drug laws are the toughest in the nation because they removed the requirement for “Guilty Knowledge.” That means we have to work twice as hard to prove you didn’t know.

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.