389 So. 2d 48 (La. 1980)
Two separate prosecutions under Louisiana's controlled substances law led to these consolidated appeals.1 Charley Brown, Jr., was charged by bill of information with possession of pentazocine (Talwin) in violation of R.S. 40:969(C).2 Defendant Vernon Bernard was likewise charged by bill of information with possession of Talwin in violation of the same statute.3
The statute which defendants were charged with violating makes it unlawful for any person "unknowingly or intentionally" to possess a controlled dangerous substance classified in Schedule IV except under circumstances not applicable here.4 The bills of information charging defendants read that each defendant did "wilfully and unlawfully" possess the controlled substance.5
Both defendants filed motions to quash the information alleging the unconstitutionality of the statute.6 The trial judge granted the motion to quash in each case.7
The Supreme Court of Louisiana granted writs in both cases to determine the correctness of the rulings and consolidated the two cases in this Court. The cases were decided on September 19, 1980.8
Whether defendants have standing to challenge the portion of R.S. 40:969(C) making unknowing possession of a Schedule IV substance criminal?9
A party does not have standing to challenge the constitutionality of a statute unless the application of that statute adversely affects him. Standing exists when there is more than a remote possibility that the defendants could be found guilty under the challenged portion of the statute.10
Yes. Charley Brown, Jr., and Vernon Bernard were each charged by bill of information with willful possession of Talwin under R.S. 40:969(C). The statute itself permits conviction upon proof of unknowing possession alone.11 Under C.Cr.P. art.
488 the state could amend the information to conform to evidence of unknowing possession.12 If the defendants were to defend on the ground of unknowing possession they would thereby admit guilt under the statute as written.13 Consequently the defendants face a real rather than hypothetical risk of conviction under the challenged language and therefore possess standing.14
Defendants have standing to challenge the unknowing-possession portion of the statute.15
Whether R.S. 40:969(C) making criminal the unknowing as well as the intentional possession of Talwin is constitutional?16
The existence of a mens rea is the rule rather than the exception in Anglo-American criminal jurisprudence. Strict-liability offenses are limited to narrow categories such as inherently dangerous items of which the possessor must be aware. A statute that criminalizes unknowing possession of a controlled substance therefore violates due process.17
No. R.S. 40:969(C) expressly makes it unlawful for any person unknowingly or intentionally to possess a Schedule IV substance. The statute therefore permits conviction of an individual who receives the substance from a third party without any awareness of its nature.18 Such an application punishes conduct that lacks the minimal mental element traditionally required for criminal liability and cannot be justified as a strict-liability offense involving inherently dangerous items of which the possessor would necessarily be aware.19
The portion of R.S. 40:969(C) that criminalizes unknowing possession is unconstitutional.20
Whether the word "unknowingly" added to R.S. 40:969(C) can be severed from the remainder of the statute?21
When a statute contains a severability clause and the invalid provision is a single word added by amendment, the remainder of the statute may be preserved if it is independent of the invalid provision, capable of enforcement, and was previously enacted without the offending language.22
Yes. The word unknowingly was inserted into R.S. 40:969(C) by Acts 1973, No. 207, which included an express severability clause.23 Prior to that amendment the statute punished only knowing or intentional possession, as enacted in Acts 1972, No. 634 and Acts 1970, No. 457.24 Deletion of the single offending word leaves a coherent and enforceable prohibition that stands independently and mirrors the legislature's original enactment.25
The word unknowingly is severable and the remainder of R.S. 40:969(C) is constitutional.26