How Medical Marijuana is Legal Today

You have heard us say that medical marijuana is legal in Florida today and has been for over 20 years. When we say this, we are not speaking of Charolette's Web or Amendment 2. We are speaking of a case law that was decided in 1991 where it was established that patients have the right to grow cannabis for medical purposes and allows individuals to become caregivers for these patients. 

Most people in Florida have never heard of the 1991 case of Jenks v. State. This case set the precedent for the Doctrine of Medical Necessity in Florida. 

This Law gives patients that are currently suffering from a debilitating medical condition the right to consume, possess, and cultivate marijuana, provided the patient or caregiver can establish that the patient has a legal "medical necessity". 

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." 

Below you will find a memorandum written by Mr. Brian Iten of the Florida State Attorney's office, dated April 2nd, 2013, which outlines the application of this law.  If you or a loved one is suffering today and is in need of medical marijuana, please contact us immediately. 

The established medical necessity defense applies to the entire state of Florida. The defense was established not due solely to the Jenks ruling but instead due to one of the first statues enacted by the State of Florida.  Jenks, 582 So.2d 676, and FS § 2.01, states: 

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.  

First, the medical necessity defense applies to the entire state of Florida. This is not due to the Jenks ruling, however, but rather due to one of the first statutes enacted by the State of Florida.  See Jenks, 582 So.2d 676, and FS § 2.01, which states: 

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.  

The medical necessity defense applies to the entire state of Florida, since Florida is a common law jurisdiction.  Therefore, any person that states that Florida Statute § 893.03(1)(C)(7) precludes the common law defense of necessity is incorrect, since this has been settled twice by the First District Court of Appeals.  The Supreme Court of Florida denied certiorari in both Jenks and Sowell, which allowed the law to stand.  There is no other conflicting case law in any other Appeals District that holds otherwise.  Therefore, this is the highest court in the land to resolve this issue, and it is the law in Florida. See Sowell, , 738 So. 2d 333. 

Any public servant possesses the ability to disregard the law if they so choose, but it doesn't mean it's legal. This is why we have Appellate and Supreme courts. It is also a good idea to remind those involved, including law enforcement, that willfully and wantonly disregarding human rights and/or safety strips government officials of their immunity, exposing them to tort litigation.  Florida Statute § 768.28 states:

(9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.  

In other words, state officials lose their immunity and can be sued civilly if they willfully disregard a person’s human rights and/or safety.  Given the unprecedented amount of scientific, anecdotal, observational, and clinical data available on medical cannabis today, it is akin to willful disregard for human rights if a prosecutor or judge refuses to allow a citizen the right to establish this defense.

For prosecutors or judges who claim that marijuana is not a medicine since it is harmful when smoked, I refer them to the Florida Supreme Court ruling of Bourassa v. State, 366 So. 2d 12.  Here, the Supreme Court held “the danger to the public presented by marijuana and its use is so different and less severe than that presented by opiates that it may not constitutionally be treated as if it presented the same dangers.”  This case was decided in 1978, well before much of the scientific data on the efficacy of using cannabis had been established or made available.  

At the present, prescription drug deaths from pills such as opiates are the leading cause of death in Florida.  Many of those who have died using these narcotics could have used an irrefutably safer alternative in cannabis to alleviate their pain. This is precisely what the medical necessity defense has been defined as: choosing between the lesser of two evils by using the least harmful treatment available.  The issue of whether cannabis is more harmful than opiates has already been settled by the Supreme Court of Florida. Therefore if you have been prescribed a drug that can cause death, and the condition can be effectively treated with cannabis, you have an absolute defense from prosecution provided you can present the evidence needed to establish these facts. 

I also refer to the FDLE Drug-Related Death report documenting the 1000’s of Floridians killed due to prescription drug use, as opposed to cannabinoids, which according to the the state, has 0 deaths attributed to its use. See FDLE Drug Death Report, http://www.fdle.state.fl.us/Content/getdoc/79241c67-253b-45eb-a238-1a07cf4a2a0c/2012-Drug-Report_Final.aspx.  

In addition, the LD50 (overdose) rating of cannabis is estimated to be around 1:20,000-40,000, whereas the LD50 of an over-the-counter medication like acetaminophen has a LD50 of around 1:48.  None of the elements of the medical necessity defense require that you be on your deathbed, it states that it must be the least harmful medication available. And remember, willful disregard for human rights and/or safety strips government officials of their immunity and exposes them to civil tort litigation.

To summarize, an affirmative defense of medical necessity is established when you can provide the legal documentation to prove this is the least harmful treatment available, and the benefits received outweigh the harm associated with its use. By educating law enforcement about this law’s existence, and having the documentation needed to establish your medical necessity defense prior to contact with law enforcement, you can avoid arrest for your use of medical cannabis. 

Source: Health Law Services

Cannabis University of Florida maintains the goal of developing and expanding individuals understanding and knowledge on the health benefits of Medical Marijuana through various seminars, events, and other resources.

 Throughout the years, science has proven that medical marijuana not only helps to ease the suffering of many, but does so with little to no side effects. On the other hand, legal prescriptions such as Oxycodone’s are addictive with many side effects while the use of cannabis has killed exactly 0 people.

Medical Marijuana is currently legal in 21 states and pending legalization in 15 more this year. 7 out of 10 voters surveyed across all parties support the use of Medical Marijuana in Florida. Medical Marijuana is supported by organizations such as the American Medical Student Association, The American College of Physicians, and the American Nurses Association. With the legalization of Medical Marijuana, we will more forward as a state that treats its patients instead of jailing them for seeking relief and treatment.

Medical Benefits of Cannabis

Credit to: Rich Deem