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 [c--o--n] at [dsmnet.com] [Carl E Olsen] at [commonlink.com] [73043 414] at [compuserve.com]