Fortuitous Presence in Drug Free School Zones and Liability Under State and Federal School Yard Statutes

Lolita Buckner Inniss, Cleveland State University

ABSTRACT
Both the federal government and a number of states have enacted statutes which prohibit certain types of conduct involving illicit drugs in or near schools. These statutes vary from jurisdiction to jurisdiction in terms of whether they stand alone as separate offenses or serve as sentencing enhancement, and in terms of the types of defenses available. These statutes have been subject to a number of challenges over the years. Chief among them are constitutional claims that such statutes violate due process, violates the eight amendments prohibition on cruel and unusual punishment, violate double jeopardy provisions, are over broad, are an invalid exercise of police power, and violate equal protection guarantees. A number of other claims have been due to the allegedly vague and arbitrary nature of statues which punished persons who were found with drugs in their vehicles while passing through school zones. It is this last type of claim which is the focus of this article. Although there has been a great deal of uniformity throughout the jurisdictions in courts' decision to uphold school yard statutes against a wide variety of challenges, a review of the cases involving happenstane or "fortuitous" presence in school zones suggests that courts may under particular circumstances be willing to void for vagueness those schoolyard statutes while passing through.

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Updated 05/20/2006