Below is a state-by-state look at the medical necessity defense.  There are only a few states where the courts had specifically addressed the issue.  There are cases in California, Florida, Hawaii, Idaho, Washington, and Washington, D.C., in which the defense was allowed.  There are cases in Alabama, Georgia, Massachusetts, Minnesota, New Jersey and (again) Washington, in which the defense was not allowed.  This information is further discussed in the appropriate state section below.  In states where there are no cases on the issue, as much information is presented that might be helpful in determining whether or not the defense would be successful.  This includes information on the defense of necessity, on whether or not there is a Therapeutic Research Program established, and on scheduling.

Alabama

-          Defense of necessity adopted by common law, however the legislature precluded assertions of medical necessity defense when it enacted the Controlled Substances Therapeutic Research Act. 

o        See:  Kauffman v. State, 1992 --- Defendant claimed that the trial court improperly denied him the opportunity to present the defense of medical necessity to the charges of marijuana possession. The court held that the state legislature had precluded the use of that defense and affirmed defendant's conviction. The court reviewed the law covering the defense of necessity, noting that it was closely related to duress. However, duress required proof that the compulsion was present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm. Furthermore, the court found that the Controlled Substances Therapeutic Research Act (Act), Ala. Code §§ 20-2-110 - 20-2-120 (1975), precluded use of the defense because the Act specifically permitted marijuana use in certain restricted circumstances not present here. The Act further specifically provided that any other use of marijuana was a felony.]  This Act authorizes certain specially certified physicians to dispense cannabis under certain circumstances to cancer patients receiving chemotherapy treatments and to glaucoma patients, and to those patients only. "... [T]he enactment of the TRA [Therapeutic Research Act], along with the implications of the Schedule I classification of marijuana, show conclusively that the possible medical uses of marijuana have been brought to the legislature's attention. In this regard, [the appellant] has not shown that the anti-seizure potential of marijuana is so unique, or affects such a small number of people, as to be inappropriate for legislative action."

o        § 20-2-111. Legislative findings; cannabis research.  The Legislature finds that recent research has shown that the use of cannabis may alleviate nausea and ill-effects of cancer chemotherapy, and may alleviate the ill-effects of glaucoma. The Legislature further finds that there is a need for further research and experimentation with regard to the use of cannabis under strictly controlled circumstances. It is for these purposes that the Controlled Substances Therapeutic Research Act is hereby established.

Alaska

-          Medical Necessity affirmative defense allowed ONLY if one is registered with the Department of Health per the Medical Marijuana Act.

o        Sec. 11.71.090 Affirmative defense to a prosecution under AS11.71.030 -- 11.71.060; medical use of marijuana.  (a) In a prosecution under AS 11.71.030 -- 11.71.060 charging the manufacture, delivery, possession, possession with intent to manufacture or deliver, use, or display of a schedule VIA controlled substance, it is an affirmative defense that the defendant is a patient, or the primary caregiver or alternate caregiver for a patient, and  (1) at the time of the manufacture, delivery, possession, possession with intent to manufacture or deliver, use, or display, the patient was registered under AS 17.37;  (2) the manufacture, delivery, possession, possession with  intent to manufacture, deliver, use, or display complied with the requirements of AS 17.37; and  (3) if the defendant is the  (A) primary caregiver of the patient, the defendant was in physical possession of the caregiver registry identification card at the time of the manufacture, delivery, possession, possession with intent to manufacture or deliver, use, or display; or (B) alternate caregiver of the patient, the defendant was in physical possession of the caregiver registry identification card at the time of the manufacture, delivery, possession, possession with intent to manufacture or deliver, use, or display. (b) In this section,  (1) "alternate caregiver" has the meaning given in AS  17.37.070;  (2) "patient" has the meaning given in AS 17.37.070;  (3) "primary caregiver" has the meaning given in AS 17.37.070.  WITH the following restrictions: Sec. 17.37.040 Restrictions on medical use of marijuana.  (a) A patient, primary caregiver, or alternate caregiver may not:  (1) engage in the medical use of marijuana in a way that endangers the health or well-being of any person;  (2) engage in the medical use of marijuana in plain view of, or in a place open to, the general public; this paragraph does not prohibit a patient or primary caregiver from possessing marijuana in a place open to the general public if  (A) the person possesses, in a closed container carried on the person, one ounce or less of marijuana in usable form;  (B) the marijuana is not visible to anyone other than the patient or primary  caregiver; and  (C) the possession is limited to that necessary to transport the marijuana directly to the patient or primary caregiver or directly to a place where the patient or primary caregiver may lawfully possess or use the marijuana;  (3) sell or distribute marijuana to any person, except that a patient may deliver  marijuana to the patient's primary caregiver and a primary caregiver may  deliver marijuana to the patient for whom the caregiver is listed; or  (4) possess in the aggregate more than  (A) one ounce of marijuana in usable form; and  (B) six marijuana plants, with no more than three mature and flowering plants  producing usable marijuana at any one time.  (b) Any patient found by a preponderance of the evidence to have knowingly violated the provisions of this chapter shall be precluded from obtaining or using a registry identification card for the medical use of marijuana for a period of one year. In this subsection, "knowingly" has the meaning given in AS 11.81.900. (c) A governmental, private, or other health insurance provider is not liable for any claim for reimbursement for expenses associated with medical use of marijuana.  (d) Nothing in this chapter requires any accommodation of any medical use of marijuana (1) in any place of employment; (2) in any correctional facility, medical facility, or facility monitored by the department or the Department of Administration; (3) on or within 500 feet of school grounds; (4) at or within 500 feet of a recreation or youth center; or (5) on a school bus.]

o        Alaska's statute reads:   "(a) A substance shall be placed in schedule VIA if it is found under AS 11.71.120(c) to have the lowest degree of danger or probable danger to a person or the public.  (b) Marijuana is a schedule VIA controlled substance." Alaska Stat. § 11.71.190 (1995).

-          Alaska has codified defense of necessity:

o        Sec. 11.81.320 Justification: Necessity. (a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when (1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and (2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear. (b) The justification specified in (a) of this section is an affirmative defense.

o        Defense of necessity requires showing that act charged was done to prevent significant evil, that there was no adequate alternative, and that harm caused was not disproportionate to harm avoided.  Defense of necessity is available if accused reasonably believed at time of acting that act charged was done to prevent significant evil and that there was no adequate alternative, even if that belief was mistaken, but accused's belief will not suffice to show necessary element that harm caused was not disproportionate to harm avoided; rather, objective determination must be made as to whether defendant's value judgment was correct, given facts as he reasonably perceived them. Emergency which produces "necessity" behind charged act must generally be result of physical forces of nature to warrant defense of necessity and thus generally, when threatened harm emanates from human source, actor who violates law in response to it can defend only on grounds of duress, defense of others, or crime prevention. Expansion of necessity defense to encompass human threats should be limited to cases in which threatened man-made harm is illegal. Cleveland v. Municipality of Anchorage, 631 P.2d 1073, Alaska, 1981.

Arizona

-          Medical necessity defense NOT available unless marijuana was prescribed by a physician in compliance with ARS 13-901.01.  Necessity defense requires that no reasonable alternative was available…

o        Medical use allowed by statute if prescribed by physician (1996’s “Drug Medicalization, Prevention and Control Act” - Ariz. Rev. stat. § 13-3412.01. Prescribing controlled substances included in schedule I for seriously ill and terminally ill patients A. Notwithstanding any law to the contrary, any medical doctor licensed to practice in this state may prescribe a controlled substance included in schedule I as prescribed by section 36-2512 to treat a disease, or to relieve the pain and suffering of a seriously ill patient or terminally ill patient, subject to the provisions of this section. In prescribing such a controlled substance, the medical doctor shall comply with professional medical standards.   B. Notwithstanding any law to the contrary, a medical doctor shall document that scientific research exists that supports the use of a controlled substance listed in schedule I as prescribed by section 36-2512 to treat a disease, or to relieve the pain and suffering of a seriously ill patient or a terminally ill patient before prescribing the controlled substance. A medical doctor prescribing a controlled substance included in schedule I as prescribed by section 36-2512 to treat a disease, or to relieve the    pain and suffering of a seriously ill patient or terminally ill patient, shall obtain the written opinion of a second medical doctor that prescribing the controlled substance is appropriate to treat a disease or to relieve the pain and suffering of a seriously ill patient or terminally ill patient. The written opinion of the second medical doctor shall be kept in the patient's official medical file. Before prescribing the controlled substance included in schedule I as prescribed by section 36-2512 the medical doctor shall receive in writing the consent of the patient.   C. Any failure to comply with the provisions of this section may be the subject of investigation and appropriate disciplining action by the Arizona medical board.

§         From NORML’s web site;  “House Bill 2518, which was signed by the governor on April 21, 1997, sought to repeal Proposition 200’s medical marijuana provision by requiring the Food and Drug Administration (FDA) to first approve marijuana before allowing state physicians to prescribe it. The bill was eventually placed on the November 3, 1998 ballot as a referendum, where voters rejected it by a vote of 57 percent to 43 percent.”

-          Non-medical Necessity defense NOT allowed in marijuana possession prosecution.  State v. Belcher (1985) where Defendant claimed necessity in possession of plants b/c he had to destroy them before his children found them.  The Court disagreed b/c the Defendant had a number of other options available including placing an anonymous phone call to the police advising them of the existence of the marijuana.

Arkansas

-          Medical necessity defense would probably not be accepted b/c legislature considered and rejected allowing the affirmative defense (see House Bill No. 1321 below)

-          Arkansas does have a “Choice of Evils” law on the books:

o        5-2-604 Choice of evils.  (a) Conduct which would otherwise constitute an offense is justifiable when: (1) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and (2) The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct. (b) Justification under this section shall not rest upon considerations pertaining to the morality and advisability of the statute defining the offense charged. (c) If the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

-          In Arkansas, marijuana is a Schedule VI drug – no currently accepted medical use…

o         [5-64-214 Criteria for Schedule VI.  The director shall place a substance in Schedule VI if he finds that: (a) The substance is not currently accepted for medical use in treatment in the United States; (b) That there is lack of accepted safety for use of the drug or other substance even under direct medical supervision; (c) That the substance has relatively high psychological and/or physiological dependence liability; and (d) That use of the substance presents a definite risk to public health.

-          There is an Act currently under consideration by the state legislature as of March 24, 2003 (2003 Arkansas House Bill No. 1321) to permit the medical use of marijuana (exemption for those who qualify as well as the allowance of the affirmative defense of medical necessity) – if this Act does not get passed, courts would probably not allow the defense b/c the legislature had specifically considered and rejected it.  Will have to keep an eye on this Bill and see whether or not it passes – if it does, the affirmative defense would be allowed.

o        UPDATE:   (HB 1321) sponsored by Rep. Jim Lendall (D-Mabelvale) died in committee March 12.

California

• Medical necessity defense allowed if defendant has approval of a licensed physician (per the Compassionate Use Act – grants a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial, by rendering possession and cultivation of marijuana noncriminal for a qualified patient or primary caregiver.  West’s Ann. Cal. Health & Safety Code §11362.5 subd. b, para. (1)(B), subd.d. 
• From People v. Ward, Cal.App. 3 Dist., 2003.  March 28, 2003:  “Section 11362.5 allows " 'seriously and terminally ill patients to legally use marijuana, if, and only if, they have the approval of a licensed physician.' " (People v. Rigo (1999) 69 Cal.App.4th 409, 415, original italics.) Thus, to fall within the medical marijuana defense, defendant had to establish the approving "medical personnel" were physicians, as required by the statute.”
• People v. Galambos (2002): Defendant was precluded from advancing the common law defense of medical necessity in his prosecution for marijuana cultivation; the Compassionate Use Act had already established limited immunity for individuals who were using marijuana for medicinal purposes, and judicial recognition of the broader immunity afforded by the common law necessity defense, which would have extended beyond the patient or caregiver and could have excused crimes other than cultivation or possession of marijuana, would have broken with the aforementioned narrow legislative exception.
• People v. Mower, 28 Cal. 4^th 457 (2002).  The court held that Health & Saf. Code, § 11362.5, subd. (d), does not confer complete immunity from arrest and prosecution, but rather confers a limited immunity that entitles a defendant to raise the defense at trial and to bring a motion to set aside the information prior to trial, although defendant failed to bring such a motion in this case. The court also held that the trial court did not err in failing to instruct the jury as to defendant's status as a primary caregiver, since substantial evidence did not support such an instruction. The court held that the trial court erred prejudicially in instructing the jury that defendant was required to prove the facts supporting his defense by a preponderance of the evidence. A defendant is required merely to raise a reasonable doubt as to this defense, since it relates to an element of the charged crimes rather than to a collateral matter. The court further held that this instructional error required reversal, since the primary question in this case was whether defendant possessed and cultivated all 31 plants seized by the police for his own personal medical use. Had the jury been properly instructed, it might have found that defendant raised a reasonable doubt, and found him not guilty.
• People v. Young (2001):  Compassionate Use Act, allowing a patient to possess or cultivate marijuana for personal medical purposes upon recommendation or approval of physician, did not provide a defense to defendant’s transportation of 135.3 grams of marijuana in his car, though defendant at time of arrest had in his possession a signed document in which a physician approved defendant’s use of marijuana for treatment of arthritic condition.

Colorado

·         Colorado’s Constitution was amended in 2000 (Article 18, section 14) to include an exception for medical uses of marijuana for persons suffering from debilitating medicinal conditions, and to allow the affirmative defense of medical necessity “where the patient was previously diagnosed as having a debilitating medical condition, was advised by a physician that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and the patient and his or her primary care-giver were collectively in possession of the amounts of marijuana only as permitted under this section.”

·         Colorado has codified necessity defense

o        Colo Rev Stats, S 18-1-702(1)) § 18-1-702. Choice of evils  (1) Unless inconsistent with other provisions of sections 18-1-703 to 18-1- 707, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

Connecticut

-          Affirmative defense of medical necessity would probably not be allowed b/c the legislature specifically rejected it.  On May 6, 2003 an act was being considered by the General Assembly (Substitute House Bill No. 5100) to allow the affirmative defense of medical necessity to those who “strictly comply with the bill”  (must register with Department of Public Health, etc.).  However, that act was defeated on May 22, 2003.

-          There is a Medical marijuana law on books in CT since 1981, but it is unworkable and not a single prescription has been issued since he law was approved b/c of federal laws.

o        § 21a-253. Possession of marijuana pursuant to a prescription by a physician:  Any person may possess or have under his control a quantity of marijuana less than or equal to that quantity supplied to him pursuant to a prescription made in accordance with the provisions of section 21a-249 by a physician licensed under the provisions of chapter 370 and further authorized by subsection (a) of section 21a-246 by the Commissioner of Consumer Protection to possess and supply marijuana for the treatment of glaucoma or the side effects of chemotherapy.

o        Conn. Gen. Stat. § 21a-246 (1994). "Upon application ... the Commissioner of Consumer Protection shall without unnecessary delay, license such physician to possess and supply marijuana for the treatment of glaucoma or the side effects of chemotherapy."

-          Necessity defense adopted by common law (not codified):

o        From: State v. Rubenstein, Not Reported in A.2d, Conn.Super.,2003. May 21, 2003.  “The common-law defense of necessity, although not statutorily codified, is available to Connecticut defendants in limited circumstances. The necessity defense is preserved under the savings clause of the penal code. See General Statute § 53a-4.Procedurally, a defendant who wishes to assert a necessity defense is required to make a preliminary showing through an offer of proof before the defense may be submitted to the jury.  As a threshold matter of law, the trial court must determine whether the necessity defense is warranted under the facts presented by the defendant.  The defense of necessity, in the present context, requires a showing by the defendant: (1) that there was no third or legal alternative available, (2) that the harm to be prevented was imminent, and (3) that a direct causal relationship may be reasonably anticipated to exist between the defendant's action and the avoidance of harm.  Where an offer of proof is made with respect to a defense and it is clear from the offer of proof that the defense is insufficient as a matter of law, the trial court may properly refuse to permit evidence of the defense to be submitted to the jury. In making its assessment of the applicability of the defense, the trial court should view the evidence on an objective basis.”

Delaware

-          Medical necessity defense might be able to be raised (see Choice of Evils statute), but may be rejected b/c of Delaware’s classification of marijuana as a Schedule I drug.

-          Choice of Evils defense codified ---

o         TITLE 11. CRIMES AND CRIMINAL PROCEDURE, PART I. DELAWARE CRIMINAL CODE, CHAPTER 4. DEFENSES TO CRIMINAL LIABILITY, § 463 Same -- Choice of evils.  Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.  (11 Del. C. 1953, § 463; 58 Del. Laws, c. 497, § 1.)

o        "Justification-choice of evils defense" applies to situations where someone must decide in emergency situation to commit what is otherwise a crime to avoid imminent public or private injury, which was not result of defendant's own conduct. 11 Del.C. § 463. Mills v. State 732 A.2d 845 Del.Supr.,1999.

o        Requested instruction on justification-choice of evils was not warranted, in prosecution for possession of destructive weapon, where defendant did not present any evidence in his own defense and defendant failed to elicit any testimonial evidence to support a choice of evils instruction during cross- examination of State's witnesses. 11 Del.C. §§ 463, 1444. Mills v. State 732 A.2d 845 Del.Supr.,1999.

o        The justification or choice-of-evils defense is appropriate when the evidence reflects a situation where someone must decide to commit what is otherwise a crime in order to avoid an imminent public or private injury that was not the result of the defendant's own conduct. 11 Del.C. § 463.  Bodner v. State, 752 A.2d 1169, Del.Supr.,2000. An accused is entitled to a jury instruction if evidence has been produced to support a particular defense. Defendant was entitled to jury instruction on defense of choice-of-evils, or justification, in prosecution for driving under the influence of alcohol; defendant testified that driver of motor vehicle in which she was a passenger abandoned the vehicle when it stalled on railroad tracks, and that she subsequently entered the driver's side to attempt to move the vehicle. 11 Del.C. § 463; 21 Del.C. § 4177.

o        Justification defense in Delaware is a general defense that includes the specific defenses of execution of a public duty, choice of evils, and self- defense. 11 Del.C. §§ 431(a), 462, 463, 464.  Justification or choice of evils defense is appropriate when the evidence reflects a situation where someone must decide to commit what is otherwise a crime in order to avoid an imminent public or private injury that was not the result of the defendant's own conduct. 11 Del.C. §§ 462, 463, 464.  Alexander v. Cahill, 2003 WL 1793514, Del.Supr.,2003.

-          Marijuana is a Schedule I Controlled Substance in Delaware (DE ST TI 16 § 4714 - (19) Any material, compound, combination, mixture, synthetic substitute or preparation which contains any quantity of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers;)

o        § 4713. Schedule I tests. The Secretary shall place a substance in Schedule I if the Secretary finds that the substance:  (1) Has high potential for abuse; and (2) Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.

District of Columbia

-          United States v. Randall (104 Daily Wash L. Rptr. 2249, DC Super. Ct. 1976):  defendant suffering from glaucoma raised medical necessity defense.  Court balanced defendant’s interest in preserving his sight against the government’s interest in controlling the drug problem to determine whether the evil to be avoided by the defendant’s act was greater than the possession and personal use of marijuana.  The court resolved the balance in favor of the defendant and held that the defendant’s right to preserve his sign outweighed the government’s interest in outlawing the drug.  First case to recognize the medical necessity defense in a marijuana case.  Court found that DC Code did not preclude the defense b/c it was one implicitly “requiring a particular state of mind.”  Therefore, in medical marijuana cases the medical necessity defense should be allowed became the defendant does not possess the requisite criminal intent. [53 SCLR 439]

-          Although the DC voters approved a medical marijuana initiative in 1998 with 69% of the vote, Congress overrode the law.

-          Marijuana (cannabis) is a Schedule III drug in D.C.

o        The Mayor shall place a substance in Schedule III if the Mayor finds that:  (1) The substance has a potential for abuse less than the substances listed in Schedules I and II;  (2) The substance has currently accepted medical use in treatment in the United States or the District of Columbia; and  (3) The abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

Federal law

-          US v. Oakland Cannabis Buyers’ Co-op., 121 S.Ct. 1171 (US 2001), in which the United States Supreme Court held that no implied medical necessity exception exists to the prohibitions on the manufacture and distribution of marijuana established by the federal Controlled Substances Act, 21 USCA §841(a).  The Court did not rule on whether the same defense would be available for those accused of possession of marijuana.

-          US v. Burton (894 F.2d 188, 191 (6th Cir. 1990) – court recognized medical necessity defense as applicable in a federal prosecution for the manufacturing and use of marijuana but held that the defendant failed to establish one element of the defense.

Florida

-          In limited circumstances, Medical Necessity Defense allowed. 

o        Jenks v. State, 582 So. 2d 676 (1991):  Florida Court of Appeals reversed convictions of a husband and wife for marijuana cultivation. The court found the couple met their burden of establishing a medical necessity defense at trial, and directed the trial court to enter a judgment of acquittal. The appellate court formulated the necessity defense 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 perpetrated to avoid it. Marijuana's schedule I classification did not preclude the Jenks' proffered defense. Specifically, the court pointed to further language in the statute, that "[n]otwithstanding the aforementioned fact that Schedule I substances have no currently accepted medical use, the Legislature recognizes that certain substances are currently accepted for certain limited medical uses in treatment in the United States but have high potential for abuse."

o        This was upheld in Sowell v. State, 738 So. 2d 333 (1998)): Defendant was convicted in the Circuit Court, Washington County of cultivating marijuana. He appealed. The District Court of Appeal held that medical necessity is available as a defense to drug charges under limited circumstances.

§         “The "limited medical uses" language which was formerly contained in section 893.03(1)(d) did not directly address the medical use of marijuana or the defense of medical necessity, and under established rules regarding the preservation of the common law the chapter 93-92 amendment to section 893.03(1)(d) does not affect the defense of medical necessity. Indeed, the existence of this provision was not critical to the decision in Jenks, which was more fundamentally predicated on the understanding that the "no currently accepted medical use" language in the subsection (1) introduction relates to general medical availability, and does not preclude the common law defense. As in Jenks, the appellant should have been allowed to pursue the defense of medical necessity.”

§         Court also raised question to be addressed by people of Florida: “Although we conclude that Jenks continues to be controlling authority as to the application of the medical necessity defense in this context, we certify the following issue, which is raised by the present case, as a question of great public importance: WHETHER THE CHAPTER 93-92, LAWS OF FLORIDA, AMENDMENT TO SECTION 893.03(1)(D), FLORIDA STATUTES, EFFECTS A CLEAR AND UNEQUIVOCAL ABROGATION OF THE COMMON LAW DEFENSE OF MEDICAL NECESSITY AS RECOGNIZED IN JENKS, AND AS APPLIED TO A SERIOUSLY ILL INDIVIDUAL WHO CULTIVATES MARIJUANA SOLELY FOR PERSONAL USE TO OBTAIN MEDICAL RELIEF?”

Georgia

·         No affirmative defenses to the possession or dissemination of marijuana for medical, health or therapeutical purposes unless patient in the TRP (see Carlson case below).

o        Carlson v. State (1999):  Medical necessity (or justification) defense NOT allowed b/c “Carlson lacked any recognized legal basis that would excuse his conduct.  Although the legislature has authorized certain qualified physicians under the supervision of the State Board of Medical Examiners to provide marijuana on a compassionate basis ‘cancer patients involved in life-threatening situation in which treatment by chemotherapy or radiology has produced severe side effects,’ or to ‘glaucoma patients who are not responding to conventional controlled substances,’ Carlson did not assert that his drug use fit within either exception…Nor did Carlson claim he was the patient participant in a designated program and thereby entitled to immunity from prosecution under OCGA 43-34-126….In seeking this charge, Carlson was effectively attempting to supplant the legislature’s decision not to establish an exception to the crime  of possession of marijuana when the marijuana is purportedly being used for medicinal purposes but has not been prescribed by an authorized physician for one of the permitted therapeutic uses.”

o        See Also:  Spillers v State (1978):  The defendant therein testified at trial that he had suffered severe pain from rheumatoid arthritis since the age of 11 and that the usual ameliorative drugs, such as aspirin, had either become ineffective or the cause of damaging side effects. The defendant further testified that he obtained a percentage of relief from marijuana, which he had learned to use in amounts to dull his body pain without "significant intoxication." His primary defense to the charge of possessing marijuana plants (found by a sheriff growing in a wooded area) was medical necessity, for which he offered to produce medical testimony at trial. The court refused to rule on the propriety of the defense of "medical necessity," considering it an issue to be resolved through legislative action.  (The appellate court reversed the defendant’s conviction on the sole ground that he should have been granted a trial continuance so his counsel could adequately prepare a defense (including the presentation of medical witnesses)).

·         Has a Therapeutic Research Program established  (GA ST S43-34-121) for side effects of chemotherapy and glaucoma patients only

o        Ga. Code Ann. § 43-34-120 to -126 (1980). The legislative purpose behind the statute was: The General Assembly finds and declares that the potential medicinal value of marijuana has received insufficient study due to a lack of financial incentives for the undertaking of appropriate research by private drug manufacturing concerns. Individual physicians cannot feasibly utilize marijuana in clinical trials because of federal government controls which involve expensive, time-consuming approval and monitoring procedures ... limited studies throughout the nation indicate that marijuana and certain of its derivatives possess valuable and, in some cases, unique therapeutic properties, including the ability to relieve nausea and vomiting which routinely accompany chemotherapy and irradiation used to treat cancer patients ... [as well as] reducing intraocular pressure in glaucoma patients who do not respond well to conventional medications ... this article is limited to clinical trials ... [and] should [not] be construed to encourage the use of marijuana in lieu of or in conjunction with other accepted medical treatment, but only as an adjunct to such accepted medical treatment. If the prerequisites of legal marijuana possession were not met, patients were subject to Georgia's criminal code.

·         Has codified justification as a defense (16-3-20)

o        § 16-3-20.  Justification   The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed:   (1) When the person's conduct is justified under Code Section 16-3-21, 16-3-23, 16-3-24, 16-3-25, or 16-3-26;   (2) When the person's conduct is in reasonable fulfillment of his duties as a government officer or employee;  (3) When the person's conduct is the reasonable discipline of a minor by his parent or a person in loco parentis; (4) When the person's conduct is reasonable and is performed in the course of making a lawful arrest; (5) When the person's conduct is justified for any other reason under the laws of this state; or  (6) In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.

§         Where defendant testified that he drove without a license because his wife was experiencing labor pains, the doctor said he needed to see her, and she could not drive herself to the doctor's office, a jury could have found that his decision to seek medical help for his wife and their soon-to-be-born child stands on "the same footing of reason and justice" as a government employee's reasonable fulfillment of his duties, a parent's reasonable discipline of a child, and a person's reasonable conduct in performing a citizen's arrest. Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991).

Hawaii

-          Per HI ST S 712-1240.1:  “It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329.”  (2000)

-          HI has a Medical use of Marijuana law (HI ST S 329) – medical use permitted only if patient has been diagnosed by a physician as having a debilitating medical condition, the physician has written that the benefits outweigh the harm, and the amount of marijuana does not exceed an adequate supply.  (also requires that patients be registered with the Department of Public Safety)

o        Prior to the passage of the above laws, in 1979, the court in State v Bachman (1979) 61 Hawaii 71, 595 P2d 287, precluded the defendant's use of a medical necessity defense in a drug prosecution due to the absence of expert medical testimony on the issue. While the court considered it "entirely possible" that medical necessity could be asserted as a defense to a marijuana possession charge in a "proper case" (pursuant to HRS 703-302), such a defense would require proof of the beneficial effects of marijuana use on the defendant's condition by competent medical testimony, as well as the absence or ineffectiveness of more conventional medical alternatives. The court emphasized that relief from "simple discomfort" would not suffice. Instead, the court said, the harm to which defendant is exposed must be "serious" and "imminent." The court noted, as well, that a statutory vehicle existed in the jurisdiction whereby marijuana was available through prescription by a licensed medical practitioner.

-          Hawaii has codified necessity defense:

o        § 703-302 Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that: (a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.(3) In a prosecution for escape under section 710-1020 or 710-1021, the defense available under this section is limited to an affirmative defense consisting of the following elements: (a) The actor receives a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack; (b) Complaint to the proper prison authorities is either impossible under the circumstances or there exists a history of futile complaints; (c) Under the circumstances there is no time or opportunity to resort to the courts; (d) No force or violence is used against prison personnel or other innocent persons; and (e) The actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat.

Idaho

-          Necessity defense allowed for medical reasons. 

o        State v. Hastings, 1990 – court allowed necessity defense, but refused to create a special defense of “medical necessity,” for defendant who argued plants were necessary to ease pain of arthritis.  The Idaho Supreme Court declined to create a special medical necessity defense, but held that Hastings could present evidence under the common law defense of necessity.  The court set forth the elements of this defense as follows: (1) a specific threat of immediate harm; the circumstances necessitating the illegal act were not brought about by defendant; (2) that the same objective could not have been accomplished by less offensive alternatives; and (3) that the harm caused was not disproportionate to the harm avoided. [Emphasis added]

o        This was confirmed in State v. Tadlock (2001) BUT court specified that defense could only be used to charge of simple possession and not to charge of possession with intent to distribute.

Illinois

-          Has a TRP in effect.  This program would most likely prevent the medical necessity defense, if raised, from being used successfully b/c typically courts say that the existence of this type of program creates a reasonable alternative the defendant could have used.

o        IL ST CH 720 S 550/11 – Research with cannabis; possession, etc. of cannabis; privacy of research subjects.  § 11. (a) The Department, with the written approval of the Department of State Police, may authorize the possession, production, manufacture and delivery of substances containing cannabis by persons engaged in research and when such authorization is requested by a physician licensed to practice medicine in all its branches, such authorization shall issue without unnecessary delay where the Department finds that such physician licensed to practice medicine in all its branches has certified that such possession, production, manufacture or delivery of such substance is necessary for the treatment of glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure certified to be medically necessary; such authorization shall be, upon such terms and conditions as may be consistent with the public health and safety. To the extent of the applicable authorization, persons are exempt from prosecution in this State for possession, production, manufacture or delivery of cannabis. (b) Persons registered under Federal law to conduct research with cannabis may conduct research with cannabis including, but not limited to treatment by a physician licensed to practice medicine in all its branches for glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure which is medically necessary within this State upon furnishing evidence of that Federal registration and notification of the scope and purpose of such research to the Department and to the Department of State Police of that Federal registration. (c) Persons authorized to engage in research may be authorized by the Department to protect the privacy of individuals who are the subjects of such research by withholding from all persons not connected with the conduct of the research the names and other identifying characteristics of such individuals. Persons who are given this authorization shall not be compelled in any civil, criminal, administrative, legislative or other proceeding to identify the individuals who are the subjects of research for which the authorization was granted, except to the extent necessary to permit the Department to determine whether the research is being conducted in accordance with the authorization.

-          Has codified necessity defense:

o        5/7-13. Necessity § 7-13. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct

-          From NORML’s web site (News):

o        10 June 2003 JUDGE SAYS DRUG WASN'T A MEDICAL NECESSITY
by Tony Gordon, (Source:Daily Herald).   Illinois ------- Jurors in the upcoming marijuana possession trial of a Beach Park woman will not be allowed to exonerate her simply because she believed the glaucoma she suffers from gave her no other choice than to possess the drug.  Circuit Judge Mary Seminara Schostok ruled against Brenda Kratovil's request to have the jury consider a so-called "medical necessity" defense.  Schostok said she believes the marijuana may not have been necessary.  Monday's ruling came after two days of testimony during which Kratovil's doctor testified he believes laser surgery would relieve suffering from the progressive eye disease.  Kratovil also testified eye drops alleviated some of the pain.  "To qualify for a medical necessity, the defendant must prove that the marijuana was the sole viable alternative available," Schostok said.  "I do not find that to be the case after hearing her doctor talk about surgery as an alternative, and the defendant claiming that she finds some relief in legal medications."…. Seven states and Canada allow medical exemptions to marijuana laws under certain circumstances for people who suffer from glaucoma.  Illinois is not one of those states.  …"Until the legislature sees fit to enact the laws such as those existing in other states, the defendant's request is not an option for the court," said Assistant State's Attorney Amy Meister Falbe.  "Laser surgery is available and it remains an option." [Emphasis added]

o        MARIJUANA RULING WILL BE APPEALED by Tony Gordon, (Source:Daily Herald) 24 June 2003.  …Kratovil, 42, of Beach Park, took a felony conviction from Lake County Associate Judge John Phillips, clearing the way for her lawyers to go to the appellate court and argue she uses the drug for her health…. Vernon Hills defense attorney David Stepanich attempted to have the evidence against Kratovil thrown out by arguing her property was illegally searched.  He also tried to convince a judge to instruct jurors in the case they could exonerate Kratovil if they believed her medical condition gave her no other choice than to possess the drug.  But Stepanich lost both motions and said Monday he did not want to risk taking the case to trial and allowing Kratovil to face up to five years in prison if convicted…. Assistant State's Attorney Amy Meister Falbe said the state was not unsympathetic to Kratovil's medical condition, but one of her own physicians testified at an earlier hearing that prescription drugs and surgery would probably have brought her greater and longer-lasting relief.  She also questioned Kratovil's claim the marijuana, or cannabis as it is referred to in court, was strictly for medicinal purposes because in her house were posters celebrating the marijuana culture and pictures of her son and other children standing in front of the plants.  "It is obvious that she is suffering, but the law in Illinois does not recognize that defense at this time," Falbe told Phillips.  "The posters and the photographs show more of the cannabis lifestyle than a medical necessity." [Emphasis added]

Next>