"Medical Necessity" Defense in Marijuana Cases Still a Battle in Florida, But More Victories Possible

The "medical necessity" defense could be more successful until laws change.
The "medical necessity" defense could be more successful until laws change.
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When a Broward County jury ruled that 50-year-old Jesse Teplicki was not guilty of growing marijuana earlier this month because his need for medical cannabis outweighed the crime of actually growing the still illegal plant, cannabis reformers rejoiced. The victory meant a precedent was set and more victories could follow.

But arguing the “medical necessity” defense in Florida has been difficult – and still is, despite the widespread acceptance of marijuana as a medicine.

“Most of the time, prosecutors have not heard of this type of defense,” says Michael Minardi, Teplick's defense attorney and a partner with the Kelly Kronenberg law firm. Minardi has been defending marijuana cases since 2009 and has attempted the medical-necessity defense on several occasions but was often shut down.

“I have to educate them about the defense,” he says. “And judges have refused because they show a bias against this type of defense.”

Minardi says there are still strong prejudices from judges and prosecutors when it comes to arguing a medical-necessity defense. As an example, the Stuart-based attorney points to a recent case in a Miami-Dade courtroom where a judge refused to accept Minardi's medical-necessity argument for a client who was an Iraq War veteran and used marijuana to soothe his PTSD symptoms.

“My client had recommendations for medical marijuana from doctors in three states, PTSD, bullets lodged in his body, muscle problems, and the judge is looking at me with a big smile on his face and says, 'I know other states have [legal medical marijuana], but there's nothing in Florida that I know of,'” Minardi recalls.

But that's starting to change. And with Teplicki's victory, the medical-necessity defense could provide more victories by giving juries – and maybe even a few judges – the chance to provide a common-sense solution until Florida's drug laws finally catch up to modern times.

Teplicki's case was the first time a jury ruled a defendant not guilty by way of a medical-necessity defense. But there have been four other cases in Florida history dating back to 1991 in which this defense was successful by a judge's ruling.

In the 1991 case Jenks v. Florida, Kenneth Jenks was an AIDS patient who contracted the virus through a blood transfusion and passed it along to his wife, Barbara. The medication they were taking caused rapid weight loss and nausea, but using marijuana alleviated these effects. Eventually, they were arrested and found guilty of growing a controlled substance, despite their medical-necessity defense. But the Florida court of appeals reversed the conviction on the following grounds, which set precedent for the next cases, including Teplicki's eventual win:

1. That the defendant did not intentionally 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. Marijuana's schedule I classification did not preclude the Jenks' proffered defense. 

Back in 1991, no states had medical marijuana laws on the books. But today, 23 states do, as well as the District of Columbia and Guam, which means the defense is easier to prove. However, even if a judge accepts it, it's still difficult to argue because of the expense.

Minardi says a defendant must fly in a medical expert from out-of-state because few doctors in Florida are willing to testify about the benefits of medical marijuana. And the costs of airfare, hotel, and the doctor's time add up. And that's a shame, the lawyer adds, because many prosecutors and police officers he talks to don't even want to deal with marijuana cases.

"A lot of prosecutors tell me off the record that they hate trying these cases and cops hate making the arrests," Minardi says. "One prosecutor even told me his grandparent used marijuana for medical use."


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