Florida Law Weekly, January 27, 1989

Marijuana is Medicine

State of FL vs. Elvy Mussika

Seventeen Judicial Circuit
In and For Broward County, Florida

Case No. 68 4395 CFA 10
State of Florida vs. Elvy Mussika, Defendant

Mark F. Polen, Circuit Court Judge

Norman Elliott Kent, P.A., for Defendant
Carol Wilhelm, A.S.A., State Attorney's Office

Dated: December 28, 1988


On March 5, 1988, the defendant, Elvy Mussika, was arrested and charged with cultivation of marijuana, in violation of Florida Statute ss893.13(1)(a). The case came before the Court for trial on August 15, 1988. The Court heard testimony from three witnesses, including the defendant. After due deliberation, the Court found Ms. Mussika not guilty of the charges by reason of a defense of medical necessity. The Court now renders the following decision.


One point I want to emphasize is that no one should interpret this decision as the Court giving a green light to the consumption of marijuana. That is not the message of this opinion. Marijuana use continues to be against the law. Ms. Mussika's circumstances, while not unique, are somewhat unusual. The message of this decision is that the law is flexible enough, and humane enough, to allow an individual to preserve her eyesight with a substance that is generally illegal. Indeed, this Court hopes that is decision, and the other decisions cited herein, will encourage legislators and regulators to correct the anomaly in the law which forces people trying to save their lives and senses into becoming criminals.

The government is charged with a responsibility to see that its laws are faithfully obeyed. And the Court does not dispute the government's legitimate role in regulating drugs. But the absolute prohibition against marijuana's use, even when such use may be therapeutically required to avoid grave and irreversible injury, appears on its face to be irrational. Such a sweeping, indiscriminate prohibition is not well founded.

Surely the Florida legislature, when it embraced such a total prohibition, could not have foreseen the possibility that a socially abused substance like marijuana might prove to be of critical medical value to patients confronting life-threatening and sense-threatening diseases.

In our haste to rightfully prosecute those who profit from the social trafficking and sale of illicit drugs we cannot become blind to the legitimate medical needs of those who are afflicted by incurable diseases and require appropriate medical care. To ignore the plight of such people renders the law callous to the most basic of all human rights; the right of self-preservation.

Finally, the Court is deeply disturbed by the broader implications to the testimony presented in this case. Medical necessity is a stringent, demanding legal defense. The practice of medicine, however, cannot be predicted upon the legal requirements of the medical necessity defense if it is to preserve health in a rational, compassionate manner. As this decision, and the earlier decisions cited herein illustrate, marijuana has "an accepted medical use in treatment". Indeed, the evidence indicates marijuana is now being employed, albeit illegally, by patients throughout the United States. In the vast majority of such cases, these desperately ill people are being forced underground and away from urgently needed medical supervision to acquire marijuana.

This is an intolerable, untenable legal situation. Unless legislators and regulators heed these urgent human needs and rapidly move to correct the anomaly arising from the absolute prohibition of marijuana which forces law-abiding citizens into the streets - and criminality - to meet their legitimate medical needs, cases of this type will become increasingly common in coming years. There is a pressing need for a more compassionate, humane law which clearly discriminates between the criminal conduct of those who socially abuse chemicals and the legitimate medical needs of seriously ill patients whose welfare and very lives may depend on the prudent therapeutic use of those very same chemical substances.

Upon the basis of the foregoing discussion, the Court finds that the defendant, Elvy Mussika, has established the defense of medical necessity. Accordingly, it is the decision of this Court that she is not guilty of violation of Florida Statute ss893.13(1)(a) , and the defendant is hereby discharged.


1. These "experimental" procedures included the use of medical and/or surgical therapies which are not yet approved by the FDA for general medical use.

2. United States v. Randall, 104 Wash. Daily Rptr. 2249 (1976).

3. Based on testimony from Ms. Mussika, Dr. Palmberg and Mr. Randall it is clear the defendant, Ms. Mussika, has made numerous attempts to acquire licit access to marijuana to meet her legitimate medical needs. She asked a number of physicians to assist her in acquiring prescriptive access to marijuana, but they refused to assist her because of the tremendous paperwork and technical knowledge involved in such an undertaking.

Desperate to prolong her sight, the defendant, at one point in 1987 telephone the Hollywood Police Department to request their help in securing licit access to marijuana.

Only after the defendant was arrested on March 5, 1988, did she learn from Mr. Randall that her physician could request legal access to marijuana from the Federal Food and Drug Administration. At this juncture Dr. Palmberg and Mr. Randall agreed to assist her in filing for a Compassionate Investigational New Drug "IND" from the FDA.

Despite the fact Dr. Palmberg filed his request with the FDA in April, 1988, FDA had not as yet approved Dr. Palmberg's request for licit supplies of marijuana to treat Ms. Mussika. At the time of this writing - and despite the verdict of this Court - Ms. Mussika has yet to receive any legal marijuana from FDA to meet her legitimate needs. The Court is greatly disturbed by the fact that, because of federal inaction, Ms. Mussika must use illicit marijuana if she is to save her sight. Such a situation is not legally tenable, much less moral.



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