Note: This is article should be read after the Florida Medical Necessity Defense to Marijuana Charges article on this Jacksonville criminal defense lawyers website. The first article covers the most recent case law in Florida and its application to the medical necessity defense in Florida.
What is the medical necessity defense in Florida?
What exactly is the medical necessity defense? Does this apply to Jacksonville marijuana charges? How do you prove it? What are the elements that a Jacksonville criminal attorney must establish to use this defense? The Sowell case did not set forth the elements for the medical necessity law in Florida. Instead, the First District Court of Appeals referred to Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991). In Jenks, the Florida appellate court gave the three elements that must be established for the medical necessity defense:
1. That the defendant did not intentionally bring about the circumstance which precipitated 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 court applied those three elements to the evidence presented in the Jenks case. The appellate court recited the following facts:
Kenneth Jenks inherited hemophilia from his mother, and contracted the acquired immune deficiency syndrome (AIDS) virus from a blood transfusion in 1980. He unknowingly passed it to his wife, Barbara Jenks. Mrs. Jenks’ health began to decline rapidly. Her weight dropped from 150 to 112 pounds during a three week period as a result of constant vomiting, and she was hospitalized at least six times for two to three weeks at a time. Although she had been prescribed over a half-dozen oral medications for nausea, none of them worked. When given shots for nausea, she was left in a stupor and unable to function. Likewise, when Mr. Jenks started AZT treatment, he was not able to eat because the medication left him constantly nauseous. He also lost weight, although not as dramatically as his wife… Mr. and Mrs. Jenks tried marijuana and found that they were able to retain their AIDS medications, eat, gain weight, maintain their health, and stay out of the hospital. They asked their treating physician about prescribing the drug, but were unable to obtain a legal prescription. The Jenks decided to grow two marijuana plants to insure its availability, avoid the expense of buying it on the street, and reduce the possibility of arrest. On March 29, 1990, the Jenks were arrested and charged with manufacturing (cultivating) cannabis, pursuant to Section 893.13, Florida Statutes (1989), and possession of drug paraphernalia, a violation of Section 893.147, Florida Statutes (1989). The Jenks admitted to cultivating the marijuana and advised officers at the scene that they each had AIDS and used the marijuana to relieve their symptoms.” Jenks v. State, 582 So. 2d 676, 677 (Fla. 1st DCA 1991)
The Florida First District Court of Appeals sided with Jenks and stated:
“As applied to the case at bar, the Jenks obviously did not intend to contract AIDS. Furthermore, the Jenks’ medical expert and physician testified that no drug or treatment is available that would effectively eliminate or diminish the Jenks’ nausea. Finally, the Jenks established that if their nausea was not controlled, their lives were in danger. The state put on no evidence that contradicted the Jenks, and the trial court had no authority to reject the witnesses’ testimony. Based upon these facts, we conclude the trial court erred in rejecting the Jenks’ defense and in convicting them as charged.” Jenks v. State, 582 So. 2d 676, 679-80 (Fla. 1st DCA 1991)
Violating any Florida drug law based on the defense of medical necessity is not a good idea. I am sure that it was not an easy road for the defendants in Sowell and Jenks. A legal battle is never fun for the criminal defendant. While Sowell and Jenks were victorious on appeal, there are likely other criminal defendants that tried to use the medical necessity defense and that were not successful. You do not want to get arrested. You do not want to risk your life and liberty. If you are arrested, consult an attorney for help. If you believe that you have a medical necessity defense, this is something that you want to discuss with your Jacksonville criminal attorney. You will need to collect evidence and prepare for the possibility of presenting your defense at trial. This will take time, so you Jacksonville criminal lawyer should be informed as soon as possible.