Legalized Medical Marijuana vs. the Medical Necessity Defense: An important distinction.

Has your state legalized medical marijuana yet?
Has your state legalized medical marijuana yet?

There’s a troubling story in Vice news about a lawyer who apparently advised his clients that medical marijuana was legal in Florida. It’s not. Florida has recognized the medical necessity defense, but has not yet legalized marijuana. It’s an important distinction. You can read the Vice story here. In this post I’ll focus on the difference between a a medical necessity defense and legalization, because it’s a confusing but important distinction.

I’ll start with the easy part, legalization. Currently, 23 states and Washington DC have legalized medical marijuana. Click here for the list and a good chart. I won’t address the relative merits of each state’s medical cannabis regime. Suffice it to say for this post that some states got it right. Others didn’t. However, the point is that in these states cannabis has been legalized by each state’s respective legislatures for medical purposes. So long as the patient is compliant with the state’s laws, she won’t be subject to arrest or prosecution by the state. (Although the patient and the dispensary could be subject to prosecution by the Feds.) From the state’s perspective the patient is compliant with the law.

Contrast that with the medical necessity defense. Generally speaking, a defense is asserted to rebut a prima facie claim. Despite the Latin verbiage, this is actually a pretty straightforward concept. In a criminal case a defendant is charged with a crime. In order to be convict the prosecution must provide evidence beyond a reasonable doubt on each element of the crime. For example, the elements necessary to convict a person of the crime of marijuana possession in NC are as follows:

A person is guilty of this offense under NC General Statutes § 90-95(a)(3) if he:
1. Knowingly;
2. Possesses;
3. Marijuana.

So, if the prosecution can provide sufficient evidence to support each one of the 3 elements of marijuana possession the defendant will be found guilty. That is, UNLESS the Defendant can assert a valid and recognized defense. Some states (unfortunately, not NC) recognize what has come to be called the “medical necessity defense.” If a criminal defendant can provide sufficient evidence to support the medical necessity defense then he will not be convicted, despite the fact that the prosecution has provided enough evidence to support its case.

Generally speaking, the medical necessity defense is about weighing competing interests. With respect to the medical necessity defense the purpose is to weigh the state’s interest in enforcing its criminal laws with the patient’s competing interest in tending to his health by using an illegal substance. In states that recognize the defense the defendant usually has to provide evidence to support some version of the following elements:

1. That the defendant did not intentionally bring about the circumstance which caused the unlawful act;
2.That the defendant could not accomplish the same objective using a less offensive (i.e. “more legal”) 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.

In states that recognize the defense, the Defendant will not be convicted of the crime of marijuana possession if he can prove these elements. Notably, the Defendant has to assert this defense in his criminal trial. This implies that the Defendant has already been arrested, charged, and put on trial. And this is the difference between medical cannabis simply being legal.

In a state where medical marijuana has been legalized you won’t be arrested if you are compliant with the state’s laws. On the other hand, if you are using medical marijuana in a state in which it has not been legalized yet, you may be able to assert the medical necessity defense in your criminal trial to avoid being convicted of a crime. It’s a pretty big difference. You can read more at the NORML website here.

So, if you read the Vice article at the beginning of this post about the lawyer who told his clients that medical marijuana was legal in Florida you can begin to understand why he’s being singled out for misleading his clients. Medical cannabis is not yet legal in Florida and, at most, patients in Florida who are busted for possession of marijuana may try to raise the medical necessity defense to avoid a conviction. Legalized medical marijuana simply isn’t the same thing as a medical necessity defense, which is one of the many reasons the remaining 27 states need to get on the boat and legalize marijuana.



3 comments on “Legalized Medical Marijuana vs. the Medical Necessity Defense: An important distinction.Add yours →

  1. Medical Necessity is not just a criminal defense.
    Patients have the Rights of Medical Necessity that end arrest before arrest happens. It is/was granted as a choice offered to each state. Each state made their decision. Florida made the choice to accept Medical Necessity for citizens and set up rules, regulations, etc.
    Let your fingers become friends with GOOGLE.
    I read VICE article. It is hateful to Health Law Services and also incorrect. Too many people are using the article as truth and basis for further publications
    U did a great job on article … looks like immense effort.

    1. Thanks for your comment, Patricia. I don’t think it’s helpful for us to get into a “tit for tat” about the medical necessity defense, which is a defense that one raises in a trial after being arrested. The real issue, and unfortunate fact, is that a lot of people are being arrested when they shouldn’t be. We shouldn’t need a medical necessity defense. Rather, we need medical cannabis to be legalized. I’m sure you agree.

  2. In many countries and regions, we look forward to the legalisation of cannabis. I don’t think it’s going to be a shame to make a decision for them if it’s only authorized to be valid. Cannabis has effects that may be helpful in certain settings. This post is terrific! Thanks for figuring it out!

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