Florida Medical Necessity Defense to Marijuana Charges

Medical Marijuana Amendment Fails in Florida

Last November, voters were confronted with the decision as to whether or not medical marijuana should be legal in the State of Florida. The Florida constitutional amendment did not pass. “A majority of voters approved of Amendment 2, about 57 percent, but state law requires a supermajority of support — 60 percent or higher — so the ballot initiative failed to pass.” (Huffington Post)  For most people, this means that possession of marijuana in Jacksonville FL is still illegal, as you can be charged with a felony or misdemeanor under Section 893.13 of the Florida Statutes.

Florida Case Law for Medical Necessity Marijuana Use

Jacksonville Marijuana Attorney

Necessity Defense to Marijuana Charges?

There is a defense based on medical necessity when it comes to marijuana charges. This medical necessity defense can be found in Florida case law. As a Jacksonville criminal lawyer, I do not recommend that people rely on this defense and possess or cultivate marijuana. You may still be arrested. You may still be charged. You may need to stand trial. In the end, it will be up to a judge or jury to decide if there is a medical necessity defense, and this is not a position that anyone wants to be in. If convicted of felony marijuana charges, you could go to prison. As for the Florida medical necessity defense, there are two appellate cases that address this issue. The most recent case is out of the 1st district. In Sowell v. State, the defendant was found guilty of cultivating marijuana. The Florida criminal defense attorney was prohibited from arguing the medical necessity defense. The defense has been used before in the 1st district in the case of Jenks v. State, 582 So.2d 676 (Fla. 1st DCA 1991). The defendant appealed this decision and won. It is important to note that the Florida Court of Appeals made it very clear that the medical necessity defense is only permitted in limited circumstances. The facts of Sowell v. State are as follows:

“At the bench trial in this case the appellant admitted cultivating marijuana, and made a proffer of evidence consistent with the elements of the medical necessity defense as delineated in Jenks. However, the state anticipated this theory and had obtained a pretrial ruling from the court that such a defense would not be allowed. In so ruling the court accepted the state’s assertion that the defense could not be maintained in light of a statutory change pertaining to the medical use of certain controlled substances under section 893.03, Fla. Stat. This statute catalogs various controlled substances within several schedules, and places marijuana (cannabis) within a Schedule I listing at section 893.03(1)(c). Other groups of Schedule I substances are listed at section 893.03(1)(a)—(d), and the subsection (1) introduction to this listing states that Schedule I substances have ‘a high potential for abuse’ and ‘no currently accepted medical use in treatment,’ and that ‘use under medical supervision does not meet accepted safety standards.’ Jenks explains that this language merely indicates that these substances are not generally available for medical use, but that it does not preclude such use in instances of medical necessity. Jenks further refers to language which was in the section 893.03(1)(d) listing of another Schedule I substance, and which provided that: Notwithstanding 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 a high potential for abuse. This language has since been deleted from section 893.03(1)(d), and the question in the present case is whether this statutory change impacts the medical necessity defense recognized in Jenks.

Florida Common Law Necessity Defense

The First District Court of Appeals agreed with Sowell’s criminal defense attorney’s position on the medical necessity defense in Florida. The court explained:

“The doctrine of medical necessity is a particular application of the common law defense of necessity…. 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…. As in Jenks, the appellant should have been allowed to pursue the defense of medical necessity.” Sowell v. State, 738 So. 2d 333, 333-34 (Fla. 1st DCA 1998)

For the elements that must be proved under the Florida medical necessity defense, read What is the medical necessity defense in Florida?

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