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Florida’s Noise Statute Declared Unconstitutional by Brevard Court

Florida’s Noise Statute Declared Unconstitutional By Brevard CourtThink back to your sixth grade civics class. Remember the separation of powers between the executive branch, legislative branch, and the judicial branch? Believe it or not, these concepts are real. This past summer, part of the judicial branch in Brevard County declared unconstitutional the noise statute passed by our legislative branch, entitled Florida Statute 316.3045. The statute prohibits amplified sound which is audible from a motor vehicle that is 25 feet away, and thousands of drug charges in Orlando start with this simple noise violation.

So, why should criminal defense attorney’s and freedom loving citizens care about this statute? Well, it’s on that list of citation statutes that are abused by special drug units patrolling central Florida, a list that includes ‘odor of cannabis’ stops, ‘window tint’ violations, etc etc. To a criminal defense attorney such as myself, this noise statute is commonly used by drug enforcement units as a pretext to stop vehicles that police suspect contain drugs. It’s also one of those citations that’s difficult to contest, even when it’s proved to the judge that the defendant’s car stereo doesn’t work! That being said, having defended thousands of criminal cases for 17+ years, I’m always amazed at the driver that both possesses drugs and is booming his car stereo so loud that it can be heard from hundreds of feet away (things that make you go hum…).

So how is it that a Brevard court declared this excess noise statute unconstitutional? In the case of State of Florida vs. Sean S. Both, 18th Judicial Circuit in and for Brevard County, Case No. 05-2009-MM-62996, the court held the noise statute unconstitutional because 316.3045’s exemptions for business advertising or political speech violate a citizen’s right to free speech, as the statute essentially regulates the ‘speech’ rather than the noise.

For example, Florida’s noise statute permits an ice cream truck driver to blare happy songs that attract children to their truck, but it doesn’t permit a citizen to blare that same music from their car for non-commercial reasons. The “music” heard from 25+ feet away would be a violation under the statute if heard from my car, but same music blaring from an ice cream truck would not be in violation pursuant to the ice cream truck’s ‘advertising’ exception under the statute. The Brevard case involved a defendant blaring “music”, and the court held that the defendant’s “music” is protected under the First Amendment as free speech even more so than advertising/commercial speech. A statute that favors one “content” of noise over the other–in this case music vs. advertising–is unconstitutional. To make this statute constitutional, it must not discriminate based upon the “content” of the noise– all ‘noise’ heard from a vehicle from 25+ feet away should be a violation.

My hope here is that several other central Florida counties (in particular the counties I practice in–Orange, Seminole, Osceola) will follow the reasoning of the Brevard court. Unfortunately, the Brevard court’s ruling does not directly impact Orange, Seminole, or Osceola county courts, but it’s a great start.

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