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25 Sep 2012

Can Community Control be Violated for DWLS Without Knowledge?

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RAM was approached by a special investigations unit (SIU) detective about information that he had possession of cannabis in the Ft. Pierce garage. RAM gave permission to search the garage. Nothing was found. At the detective’s further request, RAM gave permission to search the home. Unfortunately, the ensuing search uncovered approximately 365 grams of marijuana and a scale. At all times during the search, RAM was cooperative.

At sentencing on September 27, 2006, St. Lucie County Circuit Judge James W. McCann took the defendant’s cooperative behavior into account, as well as his honorable military service, employment and other circumstances, and imposed a 2-year term of community control followed by 1 year of drug offender probation.

Judge McCann was required to revoke RAM’s driver license because of the drug conviction. However, Judge McCann simultaneously issued an order requiring issuance of a hardship license: “Department of Motor Vehicles shall issue a business purposes only permit…immediately upon commencement of revocation”.

RAM subsequently went to DHSMV to secure the restricted license required under Judge McCann’s order. Unfortunately, DHSMV would not issue the license in that fashion – even though RAM’s license was not suspended for any other reason. DHSMV required RAM to first complete a drug awareness program. RAM immediately enrolled in the appropriate program.

RAM was a long-time employee of a marine construction company. He was so employed on November 4, 2006, when he was cited for DWLS while driving his employer’s work truck and trailer. The police officer was kind enough to issue a notice to appear instead of taking RAM to jail. RAM dutifully reported the situation to his community control officer who was required to initiate a violation of community control (VOCC) process.

Judge McCann subsequently released RAM on a reasonable bond. The primary issue in the VOCC proceeding was whether the DWLS was “with knowledge”. RAM was caught between the order directing DMV to issue a restricted license and DMV’s refusal to do so. The case posed great risk to the client because of the amount of the amount of marijuana involved with the underlying charge, as well as his prior record.

The matter was resolved satisfactorily to all parties by defendant’s admission to the VOCC on January 22, 2007. At that time, he was sentenced to 90 days in jail with credit for time served. His probation was revoked and terminated. Although he had to serve the 90-day jail term, RAM was happy to avoid the difficult restrictions imposed by community control and already had a significant amount of time in from his original arrest.

Whether probation or community control can be violated for DWLS without knowledge remains unresolved by this case. A person in a similar situation would be wise to raise and preserve the issue. The State will likely argue that the probationer is presumed to have knowledge and that the question of knowledge is a factual issue which is to be resolved by the judge at a lower standard of proof than (preponderance of evidence) than would be the case before a jury (beyond a reasonable doubt). The defense would focus on the fact that a DWLS without knowledge is a non-criminal infraction.

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