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- Cannabis in Florida: The Medical Necessity Defense
04 Aug, 2013 admin Blog
By Michael C. Minardi, Esquire
On August 2, 1977, Jimmy Carter in a message to congress supporting decriminalization of cannabis stated “penalties against the possession or a drug should not be more damaging to an individual than the use of the drug itself.”
In Florida, the cannabis medical necessity defense has been used in several cases in order to justify the use of cannabis for the treatment of a person’s illness. This defense legitimizes a person’s possession, cultivation, or use of cannabis for medicinal purposes. It is an affirmative defense that requires you to present evidence and prove to the judge, or jury, your legitimate medical use.
The necessity defense was first seen in 1551 in Reninger v. Fagossa, 1 Plowd, 1, 19, 75 Eng. Roep. 1, 29-30 (1551); and defined as “where the words of law are broken to avoid greater inconvenience, or through necessity, or by compulsion”, the law has not been broken. In essence, the question is: breaking the law by using cannabis to save your life, relieve your pain, or prevent the deadly side effects of pharmaceuticals, more important than the words of the law? The medical necessity defense should be asserted if you have a serious condition and are using cannabis in lieu of medications that cause harmful side effects and potentially death.
In Florida, the medical use of marijuana first appeared in State v. Musika, 14 F.R.W. 1 (Fla. 17th Cir. Ct. Dec. 28, 1988). The court set forth factors in which a patient must prove to establish this defense; (1) the defendant did not intentionally bring about the circumstances which caused the unlawful act; (2) that the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and (3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. The courts have upheld this defense in Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), (finding AIDS patients had medical necessity), and Sowell v. State, 734 So. 2d 421 (Fla. 199) (Review denied by Florida Supreme Court) (finding Glaucoma patient had a medical necessity). In the above cases the court permitted the person charged with either possession or cultivation of cannabis to present evidence of their medical use of cannabis in order to justify their use.
Unfortunately, establishing a medicinal necessity defense is not inexpensive or easy. It requires having a doctor who will testify to the efficiency of medical marijuana on the patient’s particular condition. It is possible to have the patient’s local doctor testify cannabis is beneficial, or testify to the harmful side effects of the medications the patient has used. I have found in my own practice, it is very unlikely to find a doctor in Florida who is willing to testify on behalf of cannabis’ medical uses. Why? The sad fact is most doctors fear prosecution and the negative backlash they may receive for supporting cannabis.
A caregiver should also testify. Usually the caregiver is a spouse or loved one who has spent a significant period of time with the patient who can testify as to their illnesses, the different prescription medications used, the effects the meds prescribed have had on the patient, and the effect cannabis has had on the patient. This caregiver can also testify as to how the patient’s medical condition affects their everyday lives and their relationships. The caregiver who has seen the suffering of the patient is a necessary and vital witness to establish this defense.
To establish a necessity defense, the defendant is required to prove three basic elements.
The first element is usually easy to prove and requires the patient to prove they are diagnosed with a condition they did not intentionally bring about themselves. This requires medical records, a note, and testimony from the primary physician or doctor, stating the condition the person is suffering from. The best way to prove this is to have your doctor testify and retain an expert medical witness who has experience treating patients with cannabis. They will do an assessment and give a full report of your medical conditions, different options you have for treatment, and why cannabis is efficient for those medical conditions and/or safer than prescription medications. In Jenks, this included AIDS.* In Sowell and in Musika, the ailment was Glaucoma. In the Jeffrey Kennedy case, he had 25 plants yet the State dismissed charges because we proved his crop was for neurological disorders and the treatment of pain. In Cathy Jordan’s case, we proved she had plants for treating Amyotrophic Lateral Sclerosis, also known as Lou Gehrig’s Disease.
The second element is whether the patient could accomplish the same objective using less offensive alternative means. This is somewhat a wishy washy area. Personally, I believe if this evidence is presented in front of a Jury and you have a legitimate medical condition, you can win. In essence, the argument is you cannot accomplish a pain free life using a less harmful alternative. This situation comes down to the importance of documenting. I recommend to all my clients to document and note the pain, the suffering, and different side effects they had while on prescription medications. Unfortunately, the government recommends billion dollar alternatives to people using medicinal cannabis as prescription medication. It seems most doctors would rather prescribe opiates and other expensive, addictive, and deadly drugs to their patients, or a cocktail of drugs that is more likely to cause painful side-effects or death than heal your aliment. Granted, some of the drugs are very effective for people. Some, however, unfortunately cause horrible side effects and death. A patient or caregiver could testify to the different side effects from the medication the patient has taken and those from cannabis.
If the medications physically affect your body, some medications are known to cause bleeding in the stomach, can cause heart attacks, strokes, or other problems may occur as a result of taking the medication, your argument is stronger in that the current available medications are ineffective and more harmful than cannabis.
The third element is: What harm does a person who is in their home using cannabis or cultivating cannabis cause to society if they are doing it for their personal use, or for their patients? The only harm and only potential victim would be to the actual user. This is the person who turns around and says cannabis is the only medicine that works for me, it works fast and is effective. I think it’s hard for the prosecution to say and prove cannabis causes any harm to society when used responsible by the individual patient. Also, I would argue it is much more harmful for a person to risk getting cannabis on the street than grow their own. The greatest harm from cannabis is arrest and prosecution, not the cannabis itself.
In a nutshell, this is what is needed to establish a valid medicinal necessity defense in Florida. I hope that people continue to use this defense. I hope this gives people the basic education on its availability and can provide some factual and legal basis for the defense. I have provided citations to cases mentioned so you can do further research on the issue. Spread the word that cannabis is medicine and people should have the right to choose whether to use it over other medications. In the latest win for patients everywhere, the state attorney issued this document deciding not to file the charges against Cathy and Robert Jordan.
http://www.minardilaw.com/cannabis-in-florida-the-medical-necessity-defense/
