Florida’s Medical Marijuana Necessity Defense

At Sammis Law Firm, our attorneys fight cases involving a person who purchases, uses, or cultivates marijuana for medical purposes. Many of our clients have asked us about the status of the medical necessity defense in Florida.

We created this page to provide you with some general information about this important defense. However, the state of the law is constantly changing. Nothing on this website constitutes legal advice. If you need legal advice about your specific issue, seek out the services of a criminal defense attorney that focuses on defending marijuana cases.

Any medical marijuana defense that might be asserted under state law may not be available under federal marijuana laws.

The lawyers at Sammis Law Firm in Tampa, FL, represent clients within the emerging medical marijuana industry in Florida after the passage of Amendment 2 in 2016.

We also represent clients subjected to enforcement actions initiated by law enforcement and the Florida Department of Health against patients, physicians, doctors and businesses that are accused of operating outside the regulatory structure in Florida.

Call (813) 250-0500 to speak with an attorney for specific legal advice based on the facts of your pending criminal charges.

Marijuana for Medical Purposes in Florida

Smoking marijuana has been recognized as a medical treatment for serious medical conditions and to lessen the side effects of treatment for serious medical conditions such as cancer, AIDS, glaucoma, multiple sclerosis, epilepsy, and spinal cord injuries.

Marijuana can reduce nausea, vomiting, and loss of appetite caused by the ailment itself and by various medications.

Prosecutors are often sensitive to the fact that an individual has a well documented medical condition that can be treated with marijuana. Certainly, presenting evidence to the prosecutor that shows that the individuals use marijuana for medical reasons is important mitigating evidence in any case.

In certain cases, the fact that marijuana is used or cultivated to treat a medical condition may be an affirmative defense which requires the jury to return a “not guilty” verdict if they find that the use of marijuana was a true “medical necessity.”

The Florida Necessity Defense Generally

The necessity defense was recognized at common law and had not been clearly rejected by the Florida legislature. The necessity defense under Florida law has specifically been recognized by the Florida Supreme Court, and is more clearly established then under Federal law.

In fact, the necessity defense has its own standard jury instruction approved by the Florida Supreme Court. Under Florida law, it is a defense to a criminal charge if the defendant committed an act out of necessity. Florida law provides for the following four elements to establish the necessity defense generally:

  1. The defendant reasonably believed under the circumstances that an immediate emergency or danger existed which threatened significant harm to the defendant or another person;
  2. The defendant did not intentionally cause the emergency or danger; and
  3. The defendant had no way to avoid the emergency or danger except by committing the crime charged; and
  4. The harm that the defendant sought to avoid by committing the criminal act must outweigh the harm caused by committing the criminal act.

The policy behind the necessity criminal defense is that when a person is in an emergency situation there are circumstances in which the person finds himself confronted with a choice of two evils:

  • committing a criminal offense by the letter of the law with a harmful result; or
  • comply with the law but in the process commit even greater harm.

See LaFave Scott, 1 Substantive Criminal Law § 5.4, at 627 (1986). In that situation, social policy excuses the crime that results from violating the law but avoiding the greater evil. Id.

The Marijuana Medical Necessity Defense under Florida Law

In 1989, in State of Florida v. Musikka, a woman charged with the cultivation of six marijuana plants asserted the medical necessity defense at trial in Broward County, Florida. The woman testified that she suffered from glaucoma, had already lost sight in one eye after a failed medical procedure, and used marijuana to keep from going blind in the other eye.

The woman’s own physician, an ophthalmic researcher with the Bascom-Palmer Eye Institute in Miami testified at trial that he knew that she was using marijuana to treat her condition and believe that without marijuana she would go blind.

Judge Mark E. Pollin, heard from several witnesses, including other medical experts, and found the woman not guilty because her use and cultivation of marijuana was excused under the “medical necessity defense.” In its written order, Judge Pollin reasoned:

In our haste to rightfully prosecute those who profit from the social trafficking and sale of illicit drugs we cannot become blind to the legitimate medical needs of those who are afflicted by incurable diseases and require appropriate medical care. To ignore the plight of such people renders the law callous to the most basic of all human rights; the right of self-preservation…

This is an intolerable, untenable legal situation. Unless legislators and regulators heed these urgent human needs and rapidly move to correct the anomaly arising from the absolute prohibition of marijuana which forces law abiding citizens into the streets – and criminality – to meet their legitimate medical needs, cases of this type will become increasingly common in coming years.

There is a pressing need for a more compassionate, humane law which clearly discriminates between the criminal conduct of those who socially abuse chemicals and the legitimate medical needs of seriously ill patients whose welfare and very lives may depend on the prudent therapeutic use of those very same chemical substances.

State of Florida v. Musikka, 17th Judicial Circuit, Broward County Florida, Case No. 68 4395 CFA 10, The Florida Law Weekly, 14 FL W 1 (January 27, 1989).

Marijuana Medical Necessity Defense Recognized by the Appellate Courts

Florida appellate courts have expressly recognized the marijuana medical necessity defense. In Jenks v. State of Florida, 582 So. 2d 676 (Fla. 1st DCA 1991), the First District Court of Appeals reversed the conviction of a husband and wife charged with cultivation of cannabis. The Court held that the couple established sufficient evidence to establish the medical necessity defense at trial as a matter of law.

In fact, the Court ordered the trial judge to enter a judgment of acquittal. The court stated the medical necessity defense as follows:

  1. The defendants had no control over the circumstances which required the choice between the lesser of two evils;
  2. No less harmful alternative was available; and
  3. The harm sought to be avoided was less offensive than the criminal acts committed to avoid it.

The Jenks Court specifically reasoned that the fact that Marijuana was classified as a Schedule I controlled substance did not preclude the medical necessity defense for marijuana cultivation.

Specifically, the Jenks Court noted that the statute provided that “[n]otwithstanding the aforementioned fact that Schedule I substances have no currently accepted medical use, the Legislature recognizes that certain substances are currently accepted for certain limited medical uses in treatment in the United States but have high potential for abuse.”

Eliminated “Limited Medical Use” Language

Subsequently, the Florida legislature deleted that specific language, however, the First District Court of Appeals again held that the medical necessity defense applied to marijuana cultivation cases when sufficient evidence supported the defense.

In Sowell v. State, 738 So. 2d 333 (1998), a man was convicted of marijuana cultivation in the Circuit Court of Washington County, FL. The Sowell Court reasoned:

The “limited medical uses” language which was formerly contained in section 893.03(1)(d) did not directly address the medical use of marijuana or the defense of medical necessity, and under established rules regarding the preservation of the common law the chapter 93-92 amendment to section 893.03(1)(d) does not affect the defense of medical necessity.

Indeed, the existence of this provision was not critical to the decision in Jenks, which was more fundamentally predicated on the understanding that the “no currently accepted medical use” language in the subsection (1) introduction relates to general medical availability, and does not preclude the common law defense. As in Jenks, the appellant should have been allowed to pursue the defense of medical necessity.

See also Sowell v. State of Florida, 738 So. 2d 333 (Fla. 1st DCA 1998).

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This decision under Federal law may have little effect on the medical necessity defense previously established under Florida law. First, the holding of the decision is limited to the distribution of marijuana for commercial purposes, not the cultivation of marijuana by an individual for personal medical purposes.

Secondly, the holding applies only to the application of the medical necessity defense under Federal common law as it applied to a Federal Statute. The decision is not binding on a Florida court considering the Florida medical necessity defense as applied to a Florida Statute.

Finally, the necessity defense is well-settled in Florida making the application of the medical necessity defense easier under Florida law.

If you are charged with possession, use or cultivation of marijuana and believe that a medical necessity defense may be applicable in your case, contact the Sammis Law Firm, P.A., to discuss this important defense.

We fight marijuana cases with a medical necessity defense throughout the Tampa Bay area, including Hillsborough County, Pinellas County, Polk County, Pasco County, Hernando County, Manatee County, and Sarasota County, FL.

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This article was last updated by on Friday, January 19, 2018.