“Category 5 Hurricane”: Miami Judge Declares Drug Law Unconstitutional and Dismisses 39 Cases

By: John Guidry

Finally. It’s hard to believe, but the dominoes are falling. I didn’t think this would happen so quickly. As you know, July 27th, 2011 marked the day that a Federal court in Orlando declared Florida’s drug law unconstitutional (Shelton v. Dept. of Corrections).

The Second Victory: Today, August 17, 2011, marks a second massive victory. A Dade County Circuit Court has agreed with the Federal court, finding our drug laws violate Due Process.

• The Result: Judge Milton Hirsch dismissed 39 cases in a single day!

Are you facing drug charges where you didn’t know the substance was illegal?

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

The Case: State v. Washington (The Hurricane)

The case is State of Florida v. Robert Washington (Judge Milton Hirsch, Case No. F11-11019, Dade County, August 17, 2011).

In his opinion, Judge Hirsch notes that the Federal court’s opinion in Shelton “has produced a category-five hurricane in the Florida criminal practice community.” Indeed it has.

The Problem with Florida Law: The core issue is that Florida punishes possession or delivery of drugs regardless of a person’s knowledge. The Dade court agreed with the Shelton reasoning:

• The “Innocent Carrier” Problem: Humans have a long tradition of carrying bags, luggage, and boxes for others. Under Florida’s statute, carrying a bag is “rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer’s knowledge or intent.”

Binding vs. Persuasive: Will Other Courts Follow?

The State argued that the Federal Shelton opinion was merely “persuasive” and not binding on Florida state courts. Judge Hirsch’s response was brilliant. He essentially said, “Fine, even if it isn’t binding, I am persuaded by it.“

He noted that the Florida Supreme Court (in Chicone v. State and Scott v. State) has long held that Criminal Intent (Mens Rea) is a necessary part of every drug crime. By removing the requirement for the State to prove you knew the drugs were illegal, the Legislature violated the Constitution.

This is GREAT news for Florida citizens who care about the Constitution.

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

Note: In 2011, we thought the law was dead. By 2012, the State revived it.

1. The Hurricane Fizzled Out (State v. Adkins) Shortly after the Washington ruling, the State of Florida appealed everything to the Florida Supreme Court.

• The Ruling: In State v. Adkins (2012), the Florida Supreme Court reversed these victories. They ruled that the Legislature does have the power to remove “intent” from drug crimes.
• The Result: The strict liability law (F.S. 893.13) was declared constitutional. The 39 cases dismissed by Judge Hirsch were likely reinstated.

2. The Federal Reversal (Shelton Overturned) The Federal victory in Shelton was also short-lived.

• The 11th Circuit: The Federal Appeals Court overturned the district judge, ruling that Florida has the right to define its own crimes, even if it omits Mens Rea.

3. The Law in 2026: Guilty Until Proven Innocent Today, Florida remains the only state with such a strict Drug Law.

• The Burden Shift: The State does not have to prove you knew the drugs were illegal.
• The Affirmative Defense: If you didn’t know, you must prove your lack of knowledge to the jury. It effectively shifts the burden from “Innocent until Proven Guilty” to “Guilty until Proven Ignorant.”

The “I Didn’t Know” Defense is Alive, But Dangerous

While the constitutional challenge failed, we still win these cases by using the Affirmative Defense. We present evidence (texts, witness testimony) to prove you had no idea what was in that bag.

Call me at (407) 423-1117. Let’s prove your innocence.

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.