Medical Necessity Defense And The Use of Marijuana

Marijuana is legal for recreational and medical use in several states in the U.S., however, it is not legal in Florida or under federal law for either use. A person using, growing, or in possession of marijuana is subject to criminal prosecution under Florida and federal law. However, there has been a question raised in Florida about the validity of a medical necessity defense in criminal cases where people are charged with possession of marijuana or with growing marijuana.

The Necessity Defense

A necessity defense to a crime is known as an affirmative defense. An affirmative defense is an explanation or fact that, if the defendant can prove it, excuses the defendant’s commission of a crime. For example, this may arise when a person charged with murder claims that the killing of another person was justified because the person charged feared for his life.

Although a medical necessity of marijuana defense is not a right given by any Florida statute, Florida courts have on occasion recognized the defense. When the defense was initially recognized by Florida courts, the language prohibiting the use of marijuana recognized the potential for marijuana to be used for medical use in limited circumstances. However, even after amendments to the Florida law prohibiting marijuana possession to remove the limited medical use phrase, courts continued to recognize the defense, as long as the defendant could show certain factors applied to him.

Factors To Prove In A Medical Necessity Defense

Generally, when Florida courts have recognized a medical necessity defense to marijuana possession charges, or charges stemming from cultivation of marijuana, they have required defendants to establish that:

1. The defendant did not purposefully create the situation or circumstances that led to his need to break the law;
2. There were no other less offensive alternatives to achieving the defendant’s goal; and
3. The illegal action the defendant took was the less offensive than the circumstances he was trying to avoid.

Therefore, for a defendant who uses marijuana for medical reasons, for example, to curb nausea to enable them to eat or to avoid intense pain associated with a terminal illness, a medical necessity defense would require a showing that:

1. The defendant did not purposefully cause his illness,
2. He tried other methods to alleviate the symptoms of his illness; and
3. Growing or possessing marijuana to use in the treatment of his intense symptoms was less offensive than his continued suffering.

People seeking to use marijuana for medical purposes despite the fact that there is no legal medical marijuana exception to the law prohibiting it should not confuse a medical necessity defense with a right to use marijuana. While a legal right to use the drug medicinally would allow a person to avoid prosecution for possessing or growing marijuana, the medical necessity defense only comes into play after the user has been arrested and is facing prosecution. The defense has been successful in past cases in Florida courts; however, the circumstances of each case are different.

Contact A Clearwater Criminal Defense Attorney

If you or someone you know has been arrested on drug charges involving marijuana or another drug, you need an experienced drug offense attorney representing you. Contact the Clearwater criminal defense attorneys at Roman & Roman, P.A.