Defense Still Viable After Defeat of Amendment 2

In November 2014 the proposed Amendment 2, which would have legalized the use of medical marijuana in Florida, was defeated by a 3% margin. The measure would have allowed doctors to prescribe cannabis for “debilitating medical conditions,” which the bill defined as cancer, multiple sclerosis, glaucoma, hepatitis C, HIV, AIDS, ALS, Crohn’s disease, Parkinson’s disease or “other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” The failure to ratify this amendment has created a misunderstanding with regard to the ability of defendants to use medical necessity as a legal defense when charged with possession or manufacture (cultivation) of marijuana.

Common Law

Amendment 2 would have codified and structured current common law (laws created by judicial decisions) addressing the use of medical marijuana, specifically medical necessity. Common law has established that a defendant may use the defense of “necessity” in circumstances where that person commits a criminal act to avoid greater harm if he or she did not act.
The application of the necessity defense to medical marijuana cases occurred in 1991 with the case of Florida vs. Jenks which involved a couple with HIV/AIDS who used marijuana to manage their symptoms. The defendants were found guilty of possession and manufacture of marijuana but this ruling was overturned on appeal.
The appellate court specifically stated that necessity was a valid defense for the use of marijuana if the following standards were met:

  1. The defendant did not intentionally bring about the circumstance which precipitated the unlawful act;
  2. The defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and
  3. The evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.

The Jenks provided medical records and physician testimony stating that the toxicity and side effects of traditional treatments were horrendous and similar symptom management occurred through the ingestion of marijuana but without the toxicity of the legal medications, making it a medical necessity. The appellate court agreed.

Other courts and prosecutors took note of this decision. In April of 2013, a State Attorney’s Office declined to prosecute a man who admittedly grew marijuana for his wife who had been living the ALS since 1989. The state attorney cited common law and stated that they had a good faith belief that they could not overcome the medical necessity defense.

Using the Medical Necessity Defense:

While the defense of medical necessity is available, extensive medical documentation and physician or medical clinician support is needed to be successful. You must show that the marijuana was for personal use by yourself or someone you have a connection with, i.e. spouse, child, sibling and you did not sell it to the person using the cannabis. In addition, you must show that it was used to:

  • alleviate symptoms of the disease;
  • counteract the side effects of medication; or
  • replace toxic or ineffective medication to address symptoms of the disease

Medical Necessity remains a defense in criminal marijuana cases and many prosecutors and judges are recognizing its validity.

 

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