Dear Representative Bowler:
This office is in receipt of your opinion request concerning the use of the word unknowingly in R.S. 40:969(c) and R.S. 40:970(c). Your specific question is whether the use of the word "unknowingly" was the result of a misprint, typographical error, or some other mistake.
As written, the language of R.S. 40:969(c) and R.S. 40:970(c) makes it "unlawful for any person to unknowingly or intentionally possess a Controlled Dangerous Substance". This wording appears to impose a strict liability for anyone found to be in possession of a Controlled Dangerous Substance even if they had no knowledge of its presence. While this use of the word "unknowingly" is intriguing, its application is limited. Apparently, few prosecutors have charged violators with the unknowing possession of a Controlled Dangerous Substance. A search of the case law reveals no direct case on point concerning this language.
An extensive review of the Legislative history reveals no indication that the legislature intended to establish a penalty for unknowingly possessing a Schedule IV or Schedule V drug. Subsection C of R.S. 40:966, 967 and 968 use identical language to Subsection C of R.S. 40:969 and 970. The only difference (with the exception of punctuation) is that 40:966, 967 and 968 prescribe a knowing or intentional possession. R.S. 40:966-968 involve what are considered more dangerous scheduled drugs (Schedules I, II, III). There is no indication in the House Bills to establish the reason or reasons why three sections (R.S.40:966-968) use the word "knowingly" and two sections (40:969-970) use the word "unknowingly." The titles of House Bills No. 280 and 317, which created sections R.S. 40:969 and 40:970, contain no language to indicate an intention to treat these sections, differently than R.S. 40:966-968.
Additionally, a technical amendment to R.S. 40:968 changed the word unknowingly to knowingly, suggesting that the error was found in one section, but not in the others.
Finally, in Subsection C of 40:970, as published by West Publishing Company, the Louisiana State Law Institute has placed a footnote on the word "Unknowingly." The footnote states "So in enrolled bill" indicating that the Louisiana State Law Institute believes the use of the word "unknowingly" was incorrect.
Considering the above reviewed material, it is our opinion that the use of the word unknowingly in R.S. 40:969(c) and 40:970(c) was a misprint, mistake or typographical error that was overlooked during the drafting of the statute.
Sincerely,
Jimmy D. White, Jr. Assistant Attorney General
Honorable Shirley D. Bowler State Representative 1939 Hickory Avenue, Suite 203 Harahan, Louisiana 70123
Date Received: Date Released: March 15, 2000
Jimmy D. White, Jr. Assistant Attorney General