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Medical Necessity Doctrine: How Defendants May Protect Themselves from Being Prosecuted for their Use of Medical Marijuana

In November, Florida voters will be able to make a statutory change to the Florida’s current drug laws, more specifically the legalization of medical marijuana. This would have an immense impact on drug laws and their criminalization within the state. The Governor just signed into force the Compassionate Medical Cannabis Act of 2014, which permits certain physicians the ability to prescribe less potent cannabis for use by patients suffering from specific ailments. But, the ability of Florida citizens to vote in the amendment to Florida’s drug laws will add bite to the current defense used by defendants who have been prosecuted in the past for marijuana drug use.

The Necessity Doctrine in Criminal Cases

Currently, it has been debated among lawmakers and the blogosphere alike about the rights already granted to citizens with regards to use of marijuana. Many believe that under the necessity doctrine (more specifically the medical necessity defense), defendants caught in possession of marijuana are in fact justified because of their specific ailment. According to the necessity doctrine in Florida, which is applied to many types of criminal cases, a defendant may be able to justify his law breaking and bad acts by proving that his action was the lesser of two evils that could have occurred. For example, the necessity doctrine may be invoked by a defendant who diverted an out-of-control car into an empty house, rather than letting it hit a group of children. The destruction of the empty house was by no way legal, but it was the lesser of the two evils than permitting children to get hit.

The Medical Necessity Doctrine Applied to Medical Marijuana Defendants

A Florida case decided in the 1990s has up-started a variety of defenses where medical necessity is being invoked; the defendants are using this case law to state that the unlawful use of medical marijuana is a medical necessity because there is not a less offensive alternative way to alleviate their symptoms related to their terminal illness. The medical necessity doctrine has been raised in other similar cases, such as abortion cases, to justify the use of abortion because carrying to term the child would threaten the life of the pregnant woman.

The Necessity Doctrine Standard

In Florida, for a defendant to invoke the necessity doctrine, he would have to show that:

  • He reasonably believed that there was an emergency situation that threatened his or her life or the life of others;
  • He did not cause the emergency situation to arise;
  • His action was the least evil alternative at the time of the emergency; and
  • The end result of his bad act was less evil and terrible than the avoided outcome.

Ultimately, the defendant in the 1990s case was able to show that he did not intend to contract AIDS (the disease he was suffering from), that he believed that his symptoms he was trying to alleviate put his life and the life of others in danger, that the use of marijuana was the least evil alternative, and his using the drug was less harmful than the symptoms that threatened his life and the life of others.

If voters decide in November to legalize marijuana, drug laws will change significantly and defendants may no longer have to use the medical necessity doctrine to ensure that they are not prosecuted for use of medicinal marijuana to alleviate debilitating symptoms.

Criminal Lawyer in Fort Lauderdale

Times are changing and there is a constant struggle being fought between state and federal laws about marijuana and the control of other drugs. Because this subject is complex and legislation is new, confusion may lead to serious consequences. If you have been charged with possession or trafficking of any type of controlled substance, it is important that you speak with an experienced criminal defense attorney at who will be able to guide you through this difficult process. Contact the Fort Lauderdale office of Kevin J. Kulik today for a free and confidential consultation. We can guide you through the complexities of your case.

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