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When the affirmative defense becomes absolute… – Health Law Services WHEN THE AFFIRMATIVE DEFENSE BECOMES absolutely Advisio Advokat Since the airing of a report by CBS Affiliate WINK News of Ft.  Although the public response to this news report has been overwhelmingly positive, there have been some who are not convinced that this applies to the entire state, that you do not have to be terminal to qualify,  or that you do not have to be arrested. 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 point out, 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. 

Conflicting case law

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. 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 a 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.  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 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 state, has 0deaths attributed to its use. See FDLE Drug Death Report, 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 an 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. 

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