Medical Marijuana / Medical Necessity Defense
Marijuana remains classified as a Schedule I controlled substance—a designation reserved for “drugs with no currently accepted medical use and a high potential for abuse”—under the federal Controlled Substances Act (CSA). Cannabis is similarly classified under Schedule I substances in the Florida Comprehensive Drug Abuse Prevention and Control Act.
While two states have legalized marijuana for recreational use, 23 others (and the District of Columbia) have enacted laws that legalize cannabis used for medical purposes. Florida is among the 15 states that have approved some type of cannabidiol (CBD) bills which allow the non-euphoric oil in marijuana to be used to treat diseases or improve medical symptoms.
The varying levels of legalization for medical cannabis are confusing for both residents of and visitors to Florida. Police in the Sunshine State will frequently arrest anybody in possession of marijuana, regardless of their valid prescriptions.
Lawyer for Medical Marijuana Necessity Defense in Tallahassee, FL
If you have been arrested for possessing cannabis that you needed for a medical condition, you do not deserve to face criminal penalties. Pumphrey Law can fight to get these charges reduced or completely dismissed.
Our Tallahassee criminal defense attorneys defend clients in Graceville, Malone, Marianna, Perry, Port St. Joe, Wewahitchka, Blountstown, and surrounding areas in the Florida Panhandle. Call (850) 681-7777 or submit an online contact form to have our lawyers review your case during a free, confidential consultation.
Overview of Medical Purposes for Marijuana in Leon County
- What is the current status of medical cannabis in Florida?
- How does an alleged offender invoke the medical necessity defense?
- Where can I find more information about medical marijuana in the Sunshine State?
On June 16, 2014, Governor Rick Scott signed Senate Bill 1030, otherwise known as the Compassionate Medical Cannabis Act of 2014. The bill legalized a low-potency strain of cannabis known as “Charlotte’s Web,” a strain of marijuana that contains 10 percent or more CBD but 0.8 percent or less tetrahydrocannabinol (THC), the euphoric compound that produces a high.
Charlotte’s Web was only approved for a limited group of patients, such as people with cancer or chronic seizures. Additionally, the Compassionate Medical Cannabis Act prohibited administration by smoking, meaning that use of the strain was limited to pills, oils, or vaporization.
Despite the bill’s passage, medical marijuana had a difficult time ever becoming available because of disputes over regulatory oversight. Florida chose five businesses to cultivate and sell the low-THC cannabis, but that selection became mired in legal challenges.
On June 10, 2015, Governor Scott signed House Bill 269, otherwise known as the Right to Try Act. This bill allows doctors to prescribe experimental drugs and treatments to terminally ill patients.
The medications allowed under the Right to Try Act must be used in clinical trials, successfully completed basic safety testing, and be part of ongoing approval process of the United States Food and Drug Administration (FDA). The bill did not include medical marijuana, but state legislators have proposed measures to expand the Right to Try Act to include medical cannabis.
Citizens have also sought to expand medical marijuana use through ballot initiatives. In November 2014, 57.62 percent of Florida voters supported Amendment 2, a state measure that would have allowed doctors to prescribe other kinds of cannabis (including the types that can be smoked) for many other kinds of conditions, but the initiative failed to gain the 60 percent supermajority of support necessary for passage of a constitutional amendment.
Amendment 2—otherwise known as the Right to Medical Marijuana Initiative—will once again be on the ballot in November 2016.
Despite the continuing issues with overall legality, some Florida courts have recognized use of the medical necessity defense in medical cannabis cases. Florida Standard Jury Instruction Chapter 3.6(k) establishes that an alleged offender may be able to use necessity as a defense against marijuana charges when all of the following elements have been proven:
- The alleged offender reasonably believed a danger or emergency existed which was not intentionally caused by the alleged offender;
- The danger or emergency threatened significant harm to the alleged offender;
- The threatened harm must have been real, imminent, and impending;
- The alleged offender had no reasonable means to avoid the danger or emergency except by committing the alleged offense;
- The offense must have been committed out of necessity to avoid the danger or emergency; and
- The harm that the alleged offender avoided must outweigh the harm caused by committing the offense.
The success of a medical necessity defense can very much depend on the ailments an alleged offender suffers from as well as the prosecutor and judge handling a specific case. An experienced attorney will know the most efficient way to utilize these types of claims.
Medical Marijuana Business Association of Florida (MMBAFL) — The MMBAFL is a marijuana trade association representing businesses and individuals in Florida that was founded in 2014 after the passage of the Compassionate Medical Cannabis Act. On this website, you can learn more about state policies, recent news, and the organization’s staff. You can also read reports about the fiscal impact and financial effects of the Right to Medical Marijuana Initiative (or Amendment 2).
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Jenks v. State of Florida — Kenneth Jenks inherited hemophilia from his mother, contracted the acquired immune deficiency syndrome (AIDS) virus from a blood transfusion in 1980, and unknowingly passed it to his wife, Barbara Jenks. In March 1980, the couple was arrested and charged with manufacturing (cultivating) cannabis and possession of drug paraphernalia. The Jenks established a medical necessity defense by having a medical expert and physician testify that no other drug or treatment was available that would effectively eliminate or diminish their nausea, and if they were unable to control their nausea, their lives were in danger. The trial judge rejected the defense of medical necessity and found the Jenks guilty of manufacturing marijuana, but the District Court of Appeal of Florida for the First District reversed that decision, holding that the statute defining cannabis as a Schedule I substance did not preclude defense of medical necessity and the Jenks established a medical necessity defense.
Florida Standard Jury Instructions | Florida Supreme Court — Chapter 3 of the Standard Jury Instructions deals with final charges to juries, and you can find the full text of instructions regarding the necessity defense under Chapter 3.6(k). Standard jury instructions are rarely used verbatim, as they have to be customized for the specifics of each individual case. The instructions still provide a helpful overview of what is often necessary to successfully invoke a medical necessity defense.
Find a Medical Marijuana Defense Lawyer in Tallahassee, Florida
Were you charged with any kind of marijuana crime despite you needing cannabis for a medical condition? It will be in your best interest to contact Pumphrey Law as soon as possible for help exploring all of your legal options.
Our Tallahassee criminal defense attorneys fight to get the most favorable outcomes for clients in communities throughout Calhoun County, Gulf County, Jackson County, Madison County, Taylor County, and Leon County. You can receive a complete evaluation of your case as soon as you call (850) 681-7777 or complete an online contact form for a free consultation.
Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.