June 23, 2016 — In the case of Demott, v. State, Demott argued that his probation requirement to “not associate with anyone who is illegally using drugs” was improperly vague and unconstitutional. The Florida Supreme Court found that the condition is specific enough to inform a defendant of the conduct prohibited.   However, the Supreme Court did go on to note that a violation of probation must be willful and substantial to justify a revocation of probation.   Thus, if a defendant is accused of violating such a condition, “the State would be required to prove by a preponderance of the evidence that he willfully associated with persons illegally using drugs.” Knowledge that one is associating with someone who is illegally using drugs is implicit in the condition.

            So, how might this law be applied? If a probationer were on a date and his date went into the restroom and used drugs without the probationer’s knowledge and was caught, there would be a very strong defense that theprobationer could assert – he did not know his date was using drugs and did not willfully associate with a person using illegal drugs.   However, if a probationer remained at a party with illegal drugs being used out in the open, there is a good likelihood the probationer would be found in violation. Not only is the implicit knowledge factor important, but the willful factor is important as well. What if the probationer is a juvenile and the only place he has to live is with a parent who smokes marijuana?   He might know of the illegal drug use, but is there a willful violation?   It could be argued that he was not willfully associating with such person as he was under his parent’s control and had no other living arrangement available.

            In probation cases, the factor of the willfulness of the violation often comes up in the context of failure to pay costs of supervision and court fees.   The State must prove the probationer willfully failed to pay costs and fees in order for a violation to be found. It is not enough that a probationer failed to pay because he simply had no money despite trying to find a job.

To read the opinion of the Florida Supreme Court go here:  Demott v. State

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