Our ever vigilant clients recently brought to our attention a website claiming to be able to provide medical marijuana certificates. The website states that medical marijuana is already legal in Florida for those with a medical necessity. The website also claims that if a patient can prove medical necessity to a law enforcement officer, they are not subject to arrest. However, these claims are completely untrue.
Medical necessity is an “affirmative defense.” In the event a person is arrested and tried for the possession of pot, the defendant bears the burden of proving the affirmative defense and the jury is free to reject it. Further, the existence of an affirmative defense has no impact on whether or not a person can be arrested for possession of marijuana. Nonetheless, in support of its claims, the website cites to the First District Court of Appeals decision in Jenks v. State, 582 So.2d 676(Fla. 1st DCA 1991). In that case, Kenneth and Barbara Jenks were convicted of cultivation of marijuana and possession of drug paraphernalia. Both had contracted the AIDS virus and suffered extreme nausea as a result. After trying multiple medications without relief, the Jenks decided to use marijuana to relieve their symptoms.
The court in Jenks recognized that the affirmative defense of medical necessity is available if the following elements are proven: (1) that the defendant did not unintentionally 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 concluded that the Jenks met their burden of establishing the medical necessity defense at trial because they did not intend to contract AIDS, expert testimony established that there was no other treatment available to eliminate or diminish the Jenks’ nausea and if their nausea was not controlled, their lives were in danger (because of their constant vomiting and resultant weight loss). Accordingly, the court reversed the Jenks’ convictions.
As is illustrated above, Jenks is highly fact specific. Subsequent case law has also emphasized the fact that the medical necessity is available only under very limited circumstances. Sowell v. State, 738 So.2d 333 (Fla. 1st DCA 1998). To date, it is still unclear whether the court will extend Jenks to other situations. Thus, the prosecutor or judge’s decision that Jenks applies to an individual’s case remains wholly discretionary. A variety of facts can lead to the decision of whether or not to prosecute pot offenses. Significantly, the existence of a medical marijuana “certificate” has no impact on such decision.
As a result, Florida is in desperate need of a constitutional amendment to legalize medical marijuana. Until then, however, it is imperative that the public not be fooled by the existence of bogus marijuana “certificates.” Such certificates will not prevent you from getting arrested and charged with a marijuana offense. Hiring an attorney is expensive, as is retaining an expert witness to testify at trial. There is the added uncertainty of whether a jury will accept such a defense and, if the defense is rejected, there are very limited avenues of relief on appeal. While we strongly believe medical marijuana should be legal in Florida, we also believe that incorrect legal advice received over the internet should not lead people astray. While medical necessity is a potential defense to a marijuana offense, no magic certificate exists to prevent arrest and prosecution in these cases.