Federal Judge Says Florida Drug Laws are Illegal. Florida Courts Say: “So What?”

By: John Guidry

Florida defense attorneys have reason to celebrate because—as you know—a Federal court in Orlando recently found Florida’s drug laws unconstitutional (Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11a (M.D. Fla. July 27, 2011)).

The Ruling: The Federal Judge said that Florida’s drug statute violates the Constitution because it does not require “Guilty Knowledge” (Mens Rea). In 49 other states, the prosecutor must prove you knew the drugs were illegal. In Florida, they just have to prove you had them.

The Question: Must our local Florida state courts follow this Federal ruling? The Answer: Unfortunately, no.

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

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

The “So What?” Precedent (State v. Dwyer)

This issue has come up before. In Wiegand v. Seaver (1974), a Federal court found Florida’s disorderly conduct statute unconstitutional. Based on this, a Florida trial court dismissed charges in State v. Dwyer (1976), essentially saying: “The Federal court says this law is bad, so I have to dismiss it.”

The Florida Supreme Court Disagreed. They ruled that lower federal court decisions are not binding on Florida state courts.

• The Rule: Unless the United States Supreme Court says it, Florida courts can ignore federal opinions on state laws.
• The Result: When a Florida court has already ruled a statute is constitutional, local judges must follow Florida rulings, not federal ones.

The Core Conflict: Guilty Knowledge

Now our analysis turns to whether a Florida court must follow Shelton in a drug trafficking case. The Florida Supreme Court in Dwyer stated that we must first look to Florida rulings for guidance. And this is where we run into trouble.

Within the last few years, several Florida courts of appeal have struck down challenges to the drug laws found in Florida Statute 893.13.

The Case: Johnson v. State In Johnson v. State, 37 So. 3d 975 (Fla. 1st DCA 2010), the defendant argued the law was unconstitutional because it makes possession a felony without requiring “Guilty Knowledge.”

• The court denied the appeal.
• They reasoned that the Legislature is allowed to remove the “intent” element.
• They argued that “Lack of Knowledge” is an Affirmative Defense—meaning the burden shifts to you to prove you didn’t know.

Every Florida case cited above found our drug law constitutional. In my opinion, every one of these courts is wrong. Out of 50 states, only Florida allows drug convictions without proving guilty knowledge. In 43 pages, the Federal court in Shelton explained why this is a violation of Due Process. Hopefully, somebody is listening.

John’s 2026 Update: The Battle is Over (and We Lost)

Note: The hope I expressed in 2011 was crushed by the appeals courts.

1. Shelton Was Reversed The 11th Circuit Court of Appeals eventually overturned the Shelton decision. They ruled that Florida has the right to create “Strict Liability” drug crimes if it wants to.

• The Law of the Land: The Florida Supreme Court cemented this in State v. Adkins, 96 So. 3d 412 (Fla. 2012). They held that Florida Statute 893.13 is constitutional. The State does not have to prove you had “criminal intent.”

2. The “Blind Mule” Defense Because the law is strict liability, we now rely entirely on the Affirmative Defense of “Lack of Knowledge.”

• How it works: If you are driving a car and police find drugs in the trunk, the State doesn’t have to prove you knew they were there. We have to prove you didn’t know.
• The Strategy: We use text messages, passenger testimony, and fingerprint analysis to show you were a “Blind Mule”—someone used to transport drugs without their knowledge.

3. The Fentanyl Mixture Problem In 2026, this law is dangerous because of Fentanyl.

• A client might knowingly buy cocaine (a felony), but if that cocaine is cut with Fentanyl, they are charged with Trafficking in Fentanyl (25-year minimum mandatory).
• The Problem: Under Adkins, you can’t say, “I intended to buy cocaine, I didn’t know about the Fentanyl.” Florida law treats the mixture as one substance.
• The Defense: We argue you lacked knowledge of the entire substance’s illicit nature if the packaging or circumstances tricked you into thinking it was something legal (like a prescription pill).

The Law is Strict, So Your Defense Must Be Stronger

Florida has the toughest drug possession laws in the country because they removed the requirement for “Intent.” That means we have to work twice as hard to 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.