Date: Fri, 3 Mar 1995 19:15:08 -0600
From: [c--o--n] at [dsmnet.com] (Carl E. Olsen)
Subject: JENKS v. STATE, Fla. 1991
582 SOUTHERN REPORTER, 2d SERIES 676
Kenneth L. JENKS and Barbara J.
Jenks, Appellants,
v.
STATE of Florida, Appellee.
No. 90-2462.
District Court of Appeal of Florida,
First District.
June 18, 1991.
Defendants were convicted in the Cir-
cuit Court, Bay County, Clinton Foster, J.,
of cultivating cannabis and possession of
drug paraphernalia, and they appealed.
The District Court of Appeal, Ervin, J.,
held that: (1) statute defining cannabis as
Schedule I substance did not preclude de-
fense of medical necessity, and (2) defen-
dants established medical necessity de-
fense.
Reversed.
Nimmons, J., dissented.
1. Drugs and Narcotics 78
Statute defining cannabis as Schedule
I substance did not preclude defense of
medical necessity raised by defendants
charged with cultivating cannabis and pos-
session of drug paraphernalia, who alleg-
edly used marijuana to treat nausea which
they suffered in connection with their con-
traction of acquired immune deficiency syn-
drome (AIDS). West=92s F.S.A.
=A7 893.03(1)(d).
JENKS v. STATE Fla. 677
Cite as 582 So.2d 676 (Fla.App. 1 Dist. 1991)
2. Drugs and Narcotics 78
Defendants charged with cultivating
cannabis and possession of drug parapher-
nalia established medical necessity defense;
medical expert and physician testified that
no other drug or treatment was available
that would effectively eliminate or diminish
nausea suffered by defendants, who had
contracted acquired immune deficiency syn-
drome (AIDS), and defendants established
that if their nausea was not controlled,
their lives were in danger. West=92s F.S.A.
=A7=A7 893.13, 893.147.
3. Drugs and Narcotics 78
Elements of medical necessity defense
to use of controlled substance are: that
defendant did not intentionally bring about
circumstances which precipitated unlawful
act; that defendant could not accomplish
same objective using less offensive alterna-
tive available to defendant; and that evil
sought to be avoided was more heinous
than unlawful act perpetrated to avoid it.
John F. Daniel, of Daniel & Komarek,
Chartered, Panama City, for appellants.
Robert A. Butterworth, Atty. Gen., and
Gypsy Bailey, Asst. Atty. Gen., Tallahas-
see, for appellee.
ON MOTION FOR REHEARING
ERVIN, Judge.
We substitute the following opinion for
Jenks v. State, 16 F.L.W. D1070, 1991 WL
61786 (Fla. 1st DCA Apr. 16, 1991).
Kenneth and Barbara Jenks appeal their
convictions for cultivation of marijuana and
possession of drug paraphernalia, contend-
ing that the trial court erred in refusing to
recognize their defense of medical necessi-
ty. We agree and reverse.
Kenneth Jenks inherited hemophilia from
his mother, and contracted the acquired
immune deficiency syndrome (AIDS) virus
from a blood transfusion in 1980. He un-
knowingly passed it to his wife, Barbara
Jenks. Mrs. Jenks' health began to decline
rapidly. Her weight dropped from 150 to
112 pounds during a three week period as a
result of constant vomiting, and she was
hospitalized at least six times for two to
three weeks at a time. Although she had
been prescribed over a half-dozen oral med-
ications for nausea, none of them worked.
When given shots for nausea, she was left
in a stupor and unable to function. Like
wise, when Mr. Jenks started AZT treat-
ment, he was not able to eat because the
medication left him constantly nauseous.
He also lost weight, although not as dra-
matically as his wife.
When the Jenks began participating in a
support group sponsored by the Bay Coun-
ty Health Department, a group member
told them how marijuana had helped him.
Although initially reluctant, Mr. and Mrs.
Jenks tried marijuana and found that they
were able to retain their AIDS medications,
eat, gain weight, maintain their health, and
stay out of the hospital. They asked their
treating physician about prescribing the
drug, but were unable to obtain a legal
prescription. The Jenks decided to grow
two marijuana plants to insure its availabil-
ity, avoid the expense of buying it on the
street, and reduce the possibility of arrest.
On March 29, 1990, the Jenks were ar-
rested and charged with manufacturing
(cultivating) cannabis, pursuant to Section
893.13, Florida Statutes (1989), and posses-
sion of drug paraphernalia, a violation of
Section 893.147, Florida Statutes (1989).
The Jenks admitted to cultivating the mari-
juana and advised officers at the scene that
they each had AIDS and used the marijua-
na to relieve their symptoms.
The Jenks waived their right to a jury
trial and agreed that the bench trial should
center on their defense of medical necessi-
ty. Because their physician, Thomas Sun-
nenberg, was not available to testify, the
parties stipulated that Dr. Sunnenberg's
testimony would be, in part:
Defense witness, THOMAS D. SUN-
NENBERG, M.D. ... will testify as fol-
lows:
* * * * * * * *
8. That he has been unable to find
any effective drug for treating the defen-
dants' nausea.
582 SOUTHERN REPORTER, 2d SERIES 678
9. That the nausea is so debilitating
that if it is not controlled, the defendants
could die.
10. That if he could legally prescribe
Cannabis Sativa as a drug to control
their nausea he would.
11. That the only drug that controls
their nausea is Cannabis Sativa.
12. That he is presently seeking ac-
cess to legal Cannabis Sativa through the
Food and Drug Administration under the
Compassionate Investigational New
Drug Program (IND) for the Jenks.
At trial, the defense also presented two
expert witnesses, Robert Randall, who suf-
fers from glaucoma and who successfully
asserted the defense of medical necessity
against a charge of marijuana cultivation in
1976,* and Dr. Daniel Dansak of Alabama,
who has treated over fifty patients who
have used marijuana to alleviate both dis-
ease symptoms and side-effects of medi-
cation.
The trial judge rejected the defense of
medical necessity, found the Jenks guilty
of manufacturing marijuana, and withheld
adjudication of guilt, placing the Jenks on
one year of unsupervised probation. He
ordered the Jenks to perform 500 hours of
community service, to be discharged only
by "providing care, comfort and concern
for each other."
The necessity defense has been formulat-
ed as follows:
The pressure of natural physical forces
sometimes confronts a person in an
emergency with a choice of two evils:
either he may violate the literal terms of
the criminal law and thus produce a
harmful result, or he may comply with
those terms and thus produce a greater
or equal or lesser amount of harm. For
reasons of social policy, if the harm
which will result from compliance with
the law is greater than that which will
result from violation of it, he is by virtue
of the defense of necessity justified in
violating it.
W.R. LaFave & A.W. Scott, Jr., 1 Substan-
tive Criminal Law =A7 5.4, at 627 (1986)
(hereinafter LaFave & Scott). Or, as stat-
ed by Justice Holmes, =93=91Detached reflec-
tion cannot be expected in the presence of
an uplifted knife.=92=94 Arnolds & Garland,
The Defense of Necessity in Criminal
Law: The Right to Choose the Lesser Evil,
65 J.Crim.L. & Criminology 289, 290 (1974)
(hereinafter Arnolds & Garland) (quoting
Brown v. United States, 256 U.S. 335, 41
S.Ct. 501, 65 L.Ed. 961 (1921)).
Although there is no specific legislative
acceptance of the necessity defense in Flor-
ida, we conclude that the defense was rec-
ognized at common law and that there has
been no clearly expressed legislative rejec-
tion of such defense. The necessity de-
fense was articulated as early as 1551 in
Reninger v. Fagossa, 1 Plowd. 1, 19, 75
Eng.Rep. 1, 29-30 (1551): =93[W]here the
words of [the law] are broken to avoid
greater inconvenience, or through necessi-
ty, or by compulsion,=94 the law has not been
broken. Arnolds & Garland, at 291. The
authors state that the defense is poorly
developed in Anglo-American jurispru-
dence because there are so few cases deal-
ing with it, =93probably because these cases
are not often prosecuted.=94 In any event,
they indicate that although there is some
disagreement on this, =93it seems clear that
necessity was a defense at common law.=94
Arnolds & Garland, at 290. The authors
cite a number of pre-1776 cases involving
the necessity defense. Arnolds & Garland,
at 291 n. 29.*
Consequently, we consider that Florida
has adopted the necessity defense pursuant
to Section 2.01, Florida Statutes (1989),
which provides:
The common and statute laws of Eng-
land which are of a general and not a
local nature ... are declared to be of
force in this state; provided, the said
statutes and common law be not incon-
sistent with the Constitution and laws of
the United States and the acts of the
Legislature of this state.
JENKS v. STATE Fla. 679
Cite as 582 So.2d 676 (Fla.App. 1 Dist. 1991)
The medical-necessity defense is merely
a more particular application of the necessi-
ty defense, See, e.g., LaFave & Scott at
=A7 5.4(c)7, at 631-33; G.E. Torcia, 1 Whar-
ton=92s Criminal Law =A7 88 (1978); 22 C.J.S.
Criminal Law =A7 50 (1989). In fact, in
Bavero v. State, 347 So.2d 781 (Fla. 1st
DCA 1977), this court recognized the de-
fense of medical necessity there asserted
by a prison escapee. Accord State v. Al-
cantaro, 407 So.2d 922, 924 (Fla. 1st DCA
1981) (=93Medical necessity was recognized
as an arguable defense by this court in
Bavero v. State[.]=94), review denied, 413
So.2d 875 (Fla.1982).
[1] Although the state conceded at oral
argument that the necessity defense exists
in Florida=92s common law, the state never-
theless contends that Section 893.03, Flor-
ida Statutes (1989), is inconsistent with and
therefore precludes the defense in the case
at bar. We disagree. Section 893.03(1)
provides:
SCHEDULE 1. -- A substance in Sched-
ule I has a high potential for abuse and
has no currently accepted medical use in
treatment in the United States and in its
use under medical supervision does not
meet accepted safety standards except
for such uses provided for in s. 402.36.
The following substances are controlled
in Schedule I:
* * * * * * * *
(c)4. Cannabis.
(Footnote omitted.) However, subsection
(1)(d) provides,
Notwithstanding the aforementioned
fact that Schedule I substances have no
currently accepted medical use, the Leg-
islature recognizes that certain sub-
stances are currently accepted for cer-
tain limited medical uses in treatment in
the United States but have a high poten-
tial for abuse.
The state argues that section 893.03 per-
mits no medical uses of marijuana whatso-
ever. In fact, all that subsection (1) states
is that marijuana is not generally available
for medical use. Subsection (1)(d), how-
ever, clearly indicates that Schedule I sub-
stances may be subject to limited medical
uses. It is well established that a statute
should not be construed as abrogating the
common law unless it speaks unequivocal-
ly, and should not be interpreted to displace
common law more than is necessary. Car-
lile v. Game & Fresh Water Fish
Comm=92n, 354 So.2d 362, 364 (Fla.1977)
(quoting 30 Fla.Jur. Statutes =A7 130 (rev.
ed. 1974); State v. Egan, 287 So.2d 1, 6-7
(Fla.1973); Sullivan v. Leatherman, 48
So.2d 836, 838 (Fla.1950) (en banc). We
conclude that section 893.03 does not pre-
clude the defense of medical necessity un-
der the particular facts of this case.
[2, 3] Moreover, we conclude that the
Jenks met their burden of establishing this
defense at trial. The elements of the de-
fense have previously been addressed by
trial courts in United States v. Randall,
104 Daily Wash.L.Rep. 2249 (Super.Ct.D.C.
Nov. 24, 1976), and in Florida in State v.
Mussika, 14 F.L.W. 1 (Fla. 17th Cir.Ct.
Dec. 28, 1988), which both involved the
medically necessary use of marijuana by
people with glaucoma. Those elements are
as follows: 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 perpe-
trated to avoid it.
As applied to the case at bar, the Jenks
obviously did not intend to contract AIDS.
Furthermore, the Jenks=92 medical expert
and physician testified that no drug or
treatment is available that would effective-
ly eliminate or diminish the Jenks=92 nausea.*
Finally, the Jenks established that if their
nausea was not controlled, their lives were
582 SOUTHERN REPORTER, 2d SERIES 680
in danger.* The state put on no evidence
that contradicted the Jenks, and the trial
court had no authority to reject the wit-
nesses=92 testimony. Based upon these facts,
we conclude the trial court erred in reject
ing the Jenks=92 defense and in convicting
them as charged.
REVERSED with directions that judg-
ment of acquittal be entered.
ZEHMER, J., concurs.
NIMMONS, J., dissents without
written opinion.
FOOTNOTES:
1. United States v. Randall, 104 Daily Wash.L.
Rep. 2249 (Super.Ct.D.C. Nov. 24. 1976).
2. Other pre-1776 cases are cited in Note, =93Neces-
sity: The Right to Present a Recognized Defense,=94
21 N.Eng.L.Rev. 779, 781-83 (1985-86).
3. Dr. Sunnenberg testified by stipulation that
=93he has been unable to find any effective drug
for treating the defendants=92 nausea,=94 and that
=93the only drug that controls their nausea is
Cannabis Sativa.=94 Dr. Dansak testified that
there is a drug, Raglan, that is =93a little more
effective than marijuana,=94 but that it must be
given intravenously in =93fairly whopping doses,=94
thus creating problems with infections, particu-
larly in AIDS patients.
4. The Jenks described their constant vomiting
and weight loss at the hearing. Dr. Sunnenberg
stated in his stipulated testimony that his pa-
tients=92 =93nausea is so debilitating that if it is not
controlled, the defendants could die.=94
589 SOUTHERN REPORTER, 2d SERIES 292
SUPREME COURT
Docket Appeal from
Title Number Date Disposition and Citation
State v. Jenks 78165 10/8/91 Rev. den. 1st DCA
582 So.2d 676
Reveiw of this decision was denied by the Supreme Court of Florida
on October 8, 1991, affirming the decision of the Florida District
Court of Appeals for the First District.
Sincerely,
Carl Olsen
Post Office Box 4091
Des Moines, Iowa 50333
(515) 243-7351
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