-          Indiana has retained common law defense of necessity.

o        Toops v. State,  643 N.E.2d 387,  Ind.App. 5 Dist.,1994. Defendant was convicted in the Cass Superior Court, Douglas A. Cox, J., of operating vehicle while intoxicated, operating vehicle with 10% or more of alcohol in blood, operating vehicle while intoxicated with prior offense of operating vehicle while intoxicated, and operating vehicle with 10% or more alcohol in blood with prior offense of operating vehicle while intoxicated. Defendant appealed. The Court of Appeals, Rucker, J., held that defendant was entitled to instruction on defense of necessity. Instruction on defense of necessity should include following elements: act charged as criminal must have been done to prevent significant evil, there must have been no adequate alternative to commission of act, harm caused by act must not be disproportionate to harm avoided, accused must entertain good faith belief that his act was necessary to prevent greater harm, such belief must be objectively reasonable under all circumstances, and accused must not have substantially contributed to creation of emergency.

§         “Even if evidence is weak or inconsistent, defendant in criminal case is entitled to have jury instructed on any theory or defense which has some foundation in evidence. Neither this court nor our supreme court has had occasion to discuss the parameters or the applicability of the common law necessity defense in a criminal context. However, our supreme court has recognized the existence of the defense. See Walker v. State (1978), 269 Ind. 346, 381 N.E.2d 88 (declining to "wrestle with its obvious complexities" and refusing to apply the defense in a prison escape case). In any event, contrary to the State's argument, to say that the common law defense of necessity is not a recognized defense in the State of Indiana is incorrect. True, it has not been addressed in any substantive way by a court of review in this State. However, while there are no common law crimes in this State, the same is not true for common law defenses. The law in this jurisdiction is well settled that a defendant in a criminal case is entitled to have the jury instructed on any theory or defense, which has some foundation in the evidence. “ [Emphasis added]

o        Judge v. State, 659 N.E.2d 608, Ind.App.,1995.  Defendants were convicted in the Superior Court, Lake County, Criminal Division, Bernard A. Carter, J., of criminal trespass and of obstructing pedestrian traffic with regard to incident in which they blocked access to family planning clinic. Defendants appealed. The Court of Appeals, Hoffman, J., held that: (1) necessity defense was not available inasmuch as legal abortion was not a significant evil; (2) restitution orders were valid; and (3) sentences were excessive and would be modified. Necessity defense is available in Indiana.  Legal abortions are not a "significant evil," for purposes of defense of necessity to charges to charges of criminal trespass.

-          35-48-4-11 Possession of marijuana, hash oil or hashish.  Sec. 11. A person who:  (1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish; (2) knowingly or intentionally grows or cultivates marijuana; or (3) knowing that marijuana is growing on his premises, fails to destroy the marijuana plants; commits possession of marijuana, hash oil, or hashish, a Class A misdemeanor. However, the offense is a Class D felony (i) if the amount involved is more than thirty (30) grams of marijuana or two (2) grams of hash oil or hashish, or (ii) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish.

-          35-48-4-7 Possession of a controlled substance; obtaining a schedule V controlled substance.  Sec. 7. (a) A person who, without a valid prescription or order of a practitioner acting in the course of his professional practice, knowingly or intentionally possesses a controlled substance (pure or adulterated) classified in schedule I, II, III, or IV, except marijuana or hashish, commits possession of a controlled substance, a Class D felony. However, the offense is a Class C felony if the person in possession of the controlled substance possesses the controlled substance:  (1) on a school bus; or (2) in, on, or within one thousand (1,000) feet of: (A) school property; (B) a public park; (C) a family housing complex; or (D) a youth program center. (b) A person who, without a valid prescription or order of a practitioner acting in the course of his professional practice, knowingly or intentionally obtains: (1) more than four (4) ounces of schedule V controlled substances containing codeine in any given forty-eight (48) hour period unless pursuant to a prescription;  (2) a schedule V controlled substance pursuant to written or verbal misrepresentation; or (3) possession of a schedule V controlled substance other than by means of a prescription or by means of signing an exempt narcotic register maintained by a pharmacy licensed by the Indiana state board of pharmacy; commits a Class D felony.

o        Burgin v. State, 431 N.E.2d 864, Ind.App., 1982.  Defendants were convicted before the Municipal Court, Marion County, Charles A. Wiles, J., of possession of Desoxyn, and possession of Desoxyn and marijuana, respectively, and they appealed. The Court of Appeals, Shields, J., held that: (1) possession of a controlled substance pursuant to possession of a valid prescription is an exception to the crime of possession, and therefore defendant had burden of proving a valid prescription; (2) statute providing that burden of proof of any exemption or exception to a crime is on the person claiming it is not unconstitutional, because such exemption or exception is not an element of the crime; (3) evidence that although pharmacist had filled Desoxyn prescriptions for defendant in the past he could not recall when he had filled the prescriptions, that the bottle of Desoxyn discovered in defendant's possession was unlabeled and that a pad of blank prescription forms was found in defendant's home supported finding that the Desoxyn found in the unlabeled bottle was not obtained under a specific valid prescription, thereby supporting defendant's conviction; and (4) evidence that the controlled substance, Desoxyn, was found in plain view on top of a dresser in a bedroom of the home occupied by second defendant and her husband demonstrated her capability to control the substance and her intent to control it, thereby supporting her conviction.  Affirmed.

o        Schuller v. State,  625 N.E.2d 1243. Ind.App. 2 Dist.,1993.  Defendant was convicted in the Marion Municipal Court, William E. Young, J. pro tem., of possession of controlled substance, and she appealed. The Court of Appeals, Shields, J., held that: (1) physician's testimony about telephone call between physician and woman, allegedly the defendant, who fraudulently arranged for physician to prescribe her a controlled substance was not hearsay; (2) evidence supported finding that caller was the defendant, thereby supporting admission of physician's testimony about phone call; and (3) where defendant obtained prescription for controlled substance from physician by misrepresenting that she was patient and that she was in pain requiring that substance as medication, prescription was not "valid" within meaning of statute making it a felony to possess controlled substance without valid prescription.  Affirmed. [re: Cogesic, a schedule III narcotic.]

Iowa

-          Marijuana is a Schedule II drug in Iowa “when used for medicinal purposes pursuant to rules of the board of pharmacy examiners.”  (IA ST S 124.206)

o        From the IA Controlled Substances Act:  “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter.”

-          Several bills have been introduced and sent to committee (in 2001 and again in March 2003) to create a TRP in IA studying the medical uses of marijuana.  2001 IA H.F. 658 (SN)

o        From NORML’s News Archives:  Iowa Bill Would Allow For A Therapeutic Medical Marijuana Research Program February 8, 2001 - Des Moines, IA, USA.  A bill creating a medical marijuana therapeutic research program was introduced in the Iowa State Senate last Thursday. Senate Bill 113 would permit state approved doctors to prescribe marijuana to treat patients under their care who suffer from multiple sclerosis, hyperparathyroidism, nail patella syndrome, AIDS, any condition with symptoms of chronic pain or spasms, nausea and glaucoma. SB 113, sponsored by Sens. Joe Bolkcom (D-23), Robert Dvorsky (D-25) and Johnie Hammond (D-31), has been referred to the Senate Human Resources Committee.

o        From NORML’s News Archives:  Use Of Medical Marijuana Not A Probation Violation, Iowa Judge Affirms. September 4, 1997 - Waterloo, IA, USA  An Iowa judge denied a motion to reconsider an earlier ruling stating that defendant Allen Helmers' use of marijuana for medical purposes does not violate terms of his probation. District Court Judge Jon Fister based his ruling on a 1979 state law rescheduling marijuana when it is used medicinally. "Because there was no medical testimony to support the contention that [the] defendant's chronic pain can be managed without the use of marijuana and because the assistant county attorney previously admitted that marijuana can be prescribed for medicinal purposes under Iowa law, the Court ruled that [Helmers] would continue on supervised probation until the conflict between federal law, which does not permit the prescription of marijuana for medicinal purposes, and Iowa law, which does, is resolved," Judge Fister affirmed in an August 13 decision. In issuing his ruling, Fister rejected the state's claim that marijuana cannot legally be prescribed in Iowa because the board of pharmacy examiners never adopted rules to regulate its medicinal use. "The first flaw in this argument is that it depends on the novel proposition that a state agency ... can do an end run around the general assembly and the governor and amend [state law] by its own action or inaction," Fister decided. "The second flaw in this argument is that nothing prevents the board from adopting any rules it deems appropriate. If there are no marijuana specific rules, it may be assumed that the board sees no need to regulate the medicinal use of marijuana any more than any other [drug.]" Fister stated that his ruling does not reflect a view that marijuana should be legalized for medicinal purposes, but merely addresses discrepancies in state and federal law. He said he would again review the terms of Helmers' probation if the Iowa Legislature opted to repeal the state's medical marijuana law. Law enforcement arrested Helmers in 1995 after seizing three ounces of marijuana from his home. Helmers contended that he uses marijuana to treat chronic pain brought on by fibromyalgia and back problems. He received two five-year prison sentences for marijuana possession and failure to possess an Iowa drug tax stamp, but the judge suspended the sentence in favor of probation. Prosecutors later accused Helmers of violating his probation after he tested positive for THC in August and October 1995. Judge Fister also ruled that the state will not be allowed to drug test Helmers for the remainder of his probation.  Presently Iowa and three other states -- New Mexico, Tennessee, and the District of Columbia -- have laws rescheduling marijuana when it is used for medical purposes. NORML Executive Director R. Keith Stroup praised Judge Fister's ruling and said that the case illustrated the need for Congress to pass H.R. 1782, the "Medical Use of Marijuana Act." H.R. 1782 seeks to eliminate federal restrictions, which currently interfere with an individual state's decision to permit the medicinal use of marijuana, Stroup noted.

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

o        Necessity defense is generally not available to excuse criminal activity by those who disagree with policies of government. Antiabortion protester, against whom injunctive relief was sought by clinic, failed to establish necessity defense which would excuse repeated trespasses on clinic property to "rescue" the unborn from abortion. Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, Iowa,1991.

o        Justification as a defense is two-pronged: an admission that a proscribed act was done, and the establishment of an exculpatory excuse that takes the act out of the criminal law. I.C.A. § 704.3. State v. Jeffries, 313 N.W.2d 508, Iowa, 1981. (murder case)

Kansas

-          Kansas has codified defense of Compulsion:

o        21-3209. Compulsion. (1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.

o        State v. Matson, 921 P.2d 790, Kan., 1996. (murder case) - Coercion or duress must be present, imminent, impending, and continuous for defense of "compulsion" to be available; it must be of such nature as to induce well-grounded apprehension of death or serious bodily injury to oneself or one's family if act is not done.  Doctrine of compulsion may not be invoked as excuse by one who had reasonable opportunity to escape compulsion or avoid doing act without undue exposure to death or serious bodily harm; threat of future injury is not enough.

o        State v. Alexander, 953 P.2d 685, Kan.App.,1998.  Whether compulsion defense is available to defendant is matter of law determined by court. K.S.A. 21-3209.  In order to constitute defense of compulsion, coercion or duress must be present, imminent, and impending, and of such nature as to induce well-grounded apprehension of death or serious bodily injury if act is not done. K.S.A. 21-3209. Doctrine of coercion or duress cannot be invoked as excuse by one who had reasonable opportunity to avoid doing act without undue exposure to death or serious bodily harm.  To constitute defense of compulsion, compulsion must be continuous and there must be no reasonable opportunity to escape compulsion without committing crime. K.S.A. 21-3209. Defense of compulsion, even if its definition were enlarged to include emergency, was unavailable to defendant charged with driving while being declared habitual violator where defendant drove after emergency had subsided and at that point, he did not have well-grounded apprehension of death or serious bodily injury if he did not drive home; although defendant conceivably had claim of compulsion emergency when he drove to treatment center to tend to potential premature birth of his child, and though walking was bad for his health and he had no money for taxi, compulsion had subsided. K.S.A. 21- 3209.

o        City of Wichita v. Tilson, 855 P.2d 911 Kan.,1993.  City brought action against abortion protester for criminal trespass. The District Court, Sedgwick County, Paul W. Clark, J., held that defendant was absolved by the justification by necessity defense. City appealed. The Supreme Court held that: (1) the defense of justification by necessity cannot be used when the harm sought to be avoided is a constitutionally protected legal activity and the harm incurred is in violation of the law, and (2) evidence on when life begins was irrelevant in action for criminal trespass on property of abortion clinic and thus admission was error. Necessity is generally considered to be affirmative defense that must be proved by defendant, usually beyond a reasonable doubt.  If recognized as defense in criminal case, justification by necessity defense only applies when harm or evil which defendant seeks to prevent by his or her own criminal conduct is legal harm or evil as opposed to moral or ethical belief of individual defendant. Justification by necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has not been adopted in Kansas.

Kentucky

-          Peak v. Commonwealth (2000):  medical necessity not recognized in KY as a defense to a criminal charge -- in order to use “choice of evils” statute (KY ST S 503.030) must be able to show attempting to avoid imminent physical injury and no reasonable alternative, etc.

-          US v. Burton (1989, Fed/Ky):  medical necessity defense recognized but rejected in case involving a glaucoma patient b/c a govt program was established to study effects of marijuana on glaucoma patients, thus, a reasonable legal alternative was available.

-          “Choice of evils” defense codified  -

o        KY ST 503.030 Choice of evils (1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide. (2) When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

-          Non-medical necessity defense NOT allowed.  See Greer v. Commonwealth (1988) where Defendant farmer admitted that he allowed the use of his field to grow marijuana, but contended that he was heavily in debt (economic necessity).  The Court affirmed Defendant’s conviction holding that the “choice of evils” defense (KRS 503.030) applies only to an imminent physical injury, and not to financial or property damage.

Louisiana

-          State v. Webb:  court remanded case where the defendant was charged with possession with intent to distribute marijuana in order o permit the defendant to testify as to whether he had smoked marijuana to relieve the pain from numerous chronic health problems, which would negate the intent element of his distribution charge.  Defendant was convicted in the 32nd Judicial District Court, Parish of Terrebonne, No. 304,279, Edward J. Gaidry, J., of possession of marijuana with intent to distribute, and he appealed. The Court of Appeal, Fitzsimmons, J., held: (1) defendant should have been permitted to testify that he smoked marijuana to relieve his pain to negate intent to distribute element, and (2) improper exclusion of such testimony was not harmless.  Reversed and remanded.

-          Has TRP:  § 1021. Prescription of marijuana for therapeutic use; rules and regulations; secretary of health and hospitals.  A. Notwithstanding any other provision of this Part, a physician licensed to practice medicine in this state and who is also registered to prescribe Schedule I substances with the Drug Enforcement Administration may prescribe marijuana, tetrahydrocannabinols, or a chemical derivative of tetrahydrocannabinols for therapeutic use by patients clinically diagnosed as suffering from glaucoma, symptoms resulting from the administration of chemotherapy cancer treatment, and spastic quadriplegia in accordance with rules and regulations promulgated by the secretary of health and hospitals and in accordance with FDA and DEA administrative guidelines for procurement of the controlled substance from the National Institute on Drug Abuse.  B. The secretary of health and hospitals, by January 1, 1992, shall promulgate rules and regulations, authorizing physicians licensed to practice in this state to prescribe marijuana for therapeutic use by patients as described in Subsection A of this Section.

Maine

-          Justification defense codified

o        (ME ST T. 17-AS 103) § 103. Competing harms 1. Conduct which the actor believes to be necessary to avoid imminent physical harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the crime charged. The desirability and urgency of such conduct may not rest upon considerations pertaining to the morality and advisability of such statute. 2. When the actor was reckless or criminally negligent in bringing about the circumstances requiring a choice of harms or in appraising the necessity of his conduct, the justification provided in subsection 1 does not apply in a prosecution for any crime for which recklessness or criminal negligence, as the case may be, suffices to establish criminal liability.

-          Medical marijuana law on books (Maine Medical Marijuana Act of 1998, ME ST T. 22 § 2383-B), which offers exemption to criminal prosecution, and allows affirmative defense that D was an eligible patient (conditional: for certain conditions, and must have written documentation from physician at time of possession).

o        MEDICAL USE OF MARIJUANA; EXEMPTIONS. The following provisions govern the medical use of marijuana.  A. Notwithstanding any other provision of law, a person who is at least 18 years of age may lawfully possess a usable amount of  marijuana for medical use if, at the time of that possession, the  person has available an authenticated copy of a medical record or  other written documentation from a physician, demonstrating that:  1) The person has been diagnosed by a physician as suffering from one or more of the following conditions: a) Persistent nausea, vomiting, wasting syndrome or loss of appetite as a result of:  i) Acquired immune deficiency syndrome or the treatment  thereof; or  ii) Chemotherapy or radiation therapy used to treat cancer;   b) Heightened intraocular pressure as a result of glaucoma;  c) Seizures associated with a chronic, debilitating disease,   such as epilepsy; or  d) Persistent muscle spasms associated with a chronic,  debilitating disease, such as multiple sclerosis; 2) A physician, in the context of a bona fine physician-patient  relationship with the person:  a) Has discussed with the person the possible health risks and therapeutic or palliative benefits of the medical use of  marijuana to relieve plain or alleviate symptoms of the person's condition, based on information known to the  physician, including, but not limited to, clinical studies or anecdotal evidence reported in medical literature or  observations or information concerning the use of marijuana  by other patients with the same or similar conditions;  b) Has provided the person with the physician's professional  opinion concerning the possible balance of risks and benefits of the medical use of marijuana to relieve pain or alleviate symptoms in the person's particular case; and  c) Has advised the person, on the basis of the physician's  knowledge of the person's medical history and condition, that  the person might benefit from the medical use of marijuana to  relieve pain or alleviate symptoms of the person's condition;  3) The person has disclosed to the physician that person's  medical use of marijuana; and  4) The person is under the continuing care of the physician….  G. It is an affirmative defense to prosecution for possession, use or  cultivation of a usable amount of marijuana under section 2383, Title 15, section 3103 or Title 17-A, chapter 45 that the defendant was an  eligible patient under this subsection.  H. It is an affirmative defense to prosecution for possession,
possession with the intent to furnish, furnishing or cultivation of a  usable amount of marijuana under section 2383, Title 15, section 3103 or Title 17-A, chapter 45 that the defendant was a designated care giver under this subsection if the person to whom the marijuana was to be furnished or for whom it was cultivated was an eligible patient.  [Emphasis added]

o        Maine legislature even petitioned Congress on April 2, 2002 to change Schedule designation of marijuana to allow for limited medical use.

Maryland

-          As of May 22, 2003:  2003 Darrell Putman Compassionate Use Act passed which allows certain individuals to introduce evidence relating to medical necessity under certain circumstances (if medical necessity is found, max penalty imposed can be $100).  This Act amends the Maryland Md. CRIMINAL LAW Code Ann. § 5-601 as follows:

o        5-601.      (c) (1)      Except as provided in [paragraph (2)]PARAGRAPHS (2) AND (3) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 4 years or a fine not exceeding $25,000 or both. (2) A person whose violation of this section involves the use or possession of marijuana is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both. (3) (I)           IN A PROSECUTION FOR THE USE OR POSSESSION OF MARIJUANA, THE DEFENDANT MAY INTRODUCE AND THE COURT SHALL CONSIDER AS A MITIGATING FACTOR ANY EVIDENCE OF MEDICAL NECESSITY.       (II) NOTWITHSTANDING PARAGRAPH (2) OF THIS SUBSECTION, IF THE COURT FINDS THAT THE PERSON USED OR POSSESSED MARIJUANA BECAUSE OF MEDICAL NECESSITY, ON CONVICTION OF A VIOLATION OF THIS SECTION, THE MAXIMUM PENALTY THAT THE COURT MAY IMPOSE ON THE PERSON IS A FINE NOT EXCEEDING $100.

-          Non-medical Necessity Defense NOT allowed.  See Frasher v. State (1970) where defendant was being arrested for shoplifting and did not have time to discard the heroin or paraphernalia in his possession.  Defendant tried to raise defense of necessity – saying it was an “emergency” situation (shoplifting arrest).  A necessity defense was not available in this state narcotics prosecution, the court concluded, since the defendant could have avoided the “emergency” at issue by taking advance precautions.

Massachusetts

-          No choice of evils statute as of 1993

-          Common law defense of necessity recognized in prison escape and firearm cases with 4 elements that must be met.

-          Medical necessity defense rejected

o        See: COMMONWEALTH v. JOSEPH T. HUTCHINS (1991) 410 Mass. 726. Defendant suffered from scolerderma and presented medical necessity defense which was rejected because the court balanced harms rather than jury (threshold finding) and considered policy and effect of decision, “the alleviation of the defendant's medical symptoms, the importance to the defendant of which we do not underestimate, would not clearly and significantly outweigh the potential harm to the public were we to declare that the defendant's cultivation of marijuana and its use for his medicinal purposes may not be punishable. We cannot dismiss the reasonably possible negative impact of such a judicial declaration ... on the enforcement of our drug laws, ... nor can we ignore the government's overriding interest in the regulation of such substances.”   The court held that evidence of necessity could not be considered until the trial court first considered "whether the harm that would have resulted from compliance with the law significantly outweighs the harm that reasonably could result from the court's acceptance of necessity as an excuse in the circumstances presented...." The court concluded that, while circumstances can overcome the "competing harms" test, Hutchins' circumstances were insufficient.

§         DISSENT, however, (by Chief Justice Liacos) makes good argument to be able to raise the defense saying that the jury should decide (not the court) and criticized the majority for “speculative judicial fact-finding.”

-          In 1991, the Massachusetts legislature approved a controlled substances therapeutic research act. 

o        § 2. Therapeutic research program  There shall be in the department a therapeutic research program, hereinafter called the program, to conduct research and monitor experimentation in the use of marijuana as a therapeutic modality in alleviating the nausea and ill-effect of cancer chemotherapy and radiation therapy, in decreasing intraocular pressure in glaucoma patients, and in decreasing airway resistance in asthmatics. Participation in the program shall be limited to patients with respect to whom a physician has certified the following: that the patient is threatened by loss of life or sight, or asthmatics who experience severe respiratory problems or discomfort; that the patient is not responding to or has incurred severe side effects from the administration of conventional controlled substances; and that the patient has given in writing his informed consent based upon information about the nature, duration, and purpose of the research, the method and means by which it is to be conducted, the inconveniences and hazards reasonably to be expected, and the effects upon the patient's health or person which may reasonably be expected to come from his participation. The department shall contract with the national institute on drug abuse, the national cancer institute or any other manufacturer, distributor or analytical laboratory for the receipt of analyzed marijuana, as defined by the department, for distribution to an approved patient upon the written prescription of a physician. Any such program shall comply with all applicable federal and state laws. For the purpose of implementing this act the commissioner shall make such rules and regulations as may be necessary.

§         In 1997 the legislatures introduced a bill to add an affirmative defense to the TRP regulations – to date, it does not appear that was ever done. 

Michigan

-          Has Controlled Substance Therapeutic Research Program (limited to cancer and glaucoma.

o        The Marihuana Controlled Substances Therapeutic Research Program of Michigan provides in part: (1) There shall be established in the department a marihuana controlled substances therapeutic research program ....
(2) Participation in the marihuana controlled substances research program shall be limited to cancer chemotherapy patients and glaucoma patients who are certified to the department by a physician as being involved in a life- threatening or sense-threatening situation, and who is not responding to conventional medical treatment or when conventional medical treatment administered has proven to be effective, but the patient has incurred severe side effects ....  Mich. Comp. Laws Ann. § 333.7335 (West 1999).

-          From NORML’s news archives:

o        Judge Allows Best-Selling Author To Use Defense Of "Medical Necessity" Against Pot Charges October 30, 1997 - Detroit, MI, USA.  A district court judge yesterday decided that an AIDS and cancer patient facing marijuana possession charges may present evidence that he uses the drug as part of his medical treatment. The case involves Peter McWilliams, a best-selling author and former Detroit resident who is facing criminal charges for possession of seven marijuana cigarettes. McWilliams, who now lives in California, uses marijuana medicinally to alleviate the side effects of the AIDS wasting syndrome and cancer chemotherapy. He was arrested December 17, 1996, at Detroit Metropolitan Airport after telling officers that he was carrying marijuana legally acquired in California. "This [ruling] is an important victory for all Michigan patients," McWilliams said. "I'm fighting so all patients can have the choice to use a safe, natural, and non-addictive therapeutic drug."  NORML Legal Committee member Richard Lustig, who is defending McWilliams, praised the judge's pre-trial decision. "This decision is an important precedent that will help thousands of Michigan residents suffering from chronic pain," he said. "We are fighting for the right of patients to get all the medical help available." In the sole court case since the passage of Proposition 215 involving a California resident arrested for possessing medical marijuana out-of-state, Nevada state prosecutors eventually dismissed all charges after deciding that the marijuana was for medical use only.

Minnesota

-          Necessity defense recognized by courts but not codified.

-          Medical necessity defense rejected.  See Hanson case below

o        State v. Hanson 468 N.W.2d 77 (1991):  Medical necessity defense not available b/c legislature had specifically made a determination of values concerning medical use of marijuana in classifying marijuana as Schedule I drug and making only exception with the THC Therapeutic Research Act (State v. Hanson, 1991  - Defendant was convicted in the District Court, Roseau County, Dennis J. Murphy, J., of the manufacture of marijuana, and he appealed. The Court of Appeals, Klaphake, J., held that: (1) defense of medical necessity was not available to defendant because legislature, by implication, considered and rejected broad exception for medical uses, and (2) prohibition against marijuana possession, despite its claimed medical value to defendant, did not violate defendant's constitutional rights.).  The statutory exemption from criminal prosecution does not encompass possession of marijuana; it specifies THC only. Minn. Stat. § 152.21 subd. 6 (1996). The legislature transferred THC from schedule I to schedule II for purposes of the Act, but left marijuana in schedule I. The appellate court found that the legislature's actions "show conclusively that the possible medical uses of marijuana have been brought to the legislature's attention."

-          THC Therapeutic Research Act (MN ST S 152.21) (statute does not distinguish between marijuana and THC)

o        See Minn. Stat. § 152.21 (1989). The legislative purpose behind the statute was:  The legislature finds that scientific literature indicates promise for ... THC, the active component of marijuana, in alleviating certain side effects of cancer chemotherapy under strictly controlled medical circumstances ... [ [ [ [t]he intent of this section is to establish an extensive research program to investigate and report on the therapeutic effects of THC ... in compliance with all federal laws and regulations promulgated by the federal food and drug administration, the national institute on drug abuse and the drug enforcement agency. The intent of this legislature is to allow the research program the greatest possible access to qualified cancer patients ..... § 152.21(2). The principal investigator is defined as "the individual responsible for the medical and scientific aspects of the research, development of protocol, and contacting and qualifying the clinical investigators of the state." § 152.21(5)(1). All IND's are regulated by the Federal Food, Drug, and Cosmetic Act. See 21 U.S.C. § 301 (1994). § 152.21(5)(2). Protocol information included the description and requirements of the therapeutic research program, "summaries of current papers in medical journals reporting on the research concerning the safety, efficacy and appropriate use of THC in alleviating the nausea and emetic effects of cancer chemotherapy ...."

-          On April 2, 2003, a Compassionate Use Act bill was introduced which would allow medical use of marijuana and an affirmative defense of medical necessity to be raised for those in compliance with the Act (2003 MN HF 1440 (SN)). 

o        Referred to the Health and Human Services Policy Committee on April 2

o        As of May 16, 2003, only new activity is that an additional author was added to the Bill

Mississippi

-          Medical marijuana act introduced to House Legislature on January 21, 2003, which would also move marijuana from Schedule I to Schedule II (2003 MS HB 1044 (SN)). 

o        As of February 4, 2003:  Bill died in Committee

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

o        See:  Corley v. State 536 So.2d 1314 , Miss.,1988. “The Defendant has raised the defense of escape because of necessity. To constitute such a defense, there must be (1) immediate threat of serious bodily harm to prisoner; (2) prisoner has no time in which to make complaint to authorities about his danger; (3) force or violence is not used in escape; and (4) prisoner must intend to report immediately to proper authorities when he attains position of safety. ”

o        See:  King v. State 788 So.2d 93 Miss.App.,2001. “the defense of necessity is available "where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal."  The defense of necessity has been applied to justify the use of deadly force in matters of self-defense, Calhoun v. State, 526 So.2d 531 (Miss.1988), escape from custody, Corley v. State, 536 So.2d 1314 (Miss.1988), and has been used to justify leaving the scene of an accident. Knight, 601 So.2d at 403. "The application of the necessity defense in these cases share the finding of a reasonable belief that imminent danger of death or serious bodily harm induced the criminal conduct." *96 McMillan v. City of Jackson, 701 So.2d 1105, 1107 (Miss.1997).”

o        See:  Knight v. State, 601 So.2d 403 (Miss.1992).  Where person reasonably believes that he is in danger of physical harm, he may be excused for some conduct which ordinarily would be criminal.  Jury could have found that fear motivated motorist in leaving scene of accident and that there were circumstances which could induce that fear in a reasonable person based on testimony that black motorist struck white child, a crowd gathered, the child's father began to approach him, and a female bystander said "Boy, you better get out of here."

o        See:  McMillan v. City of Jackson, 701 So.2d 1105, 1107 (Miss.1997).  Defense of necessity has three essential elements: act charged must have been done to prevent significant evil; there must have been no adequate alternative; and harm caused must not have been disproportionate to harm avoided.  “In support of McMillan's application of the necessity defense, she indicates that the necessity defense is a widely accepted defense that has found favor in Mississippi jurisprudence. We have applied the defense of necessity to justify the use of deadly force in matters of self-defense. Calhoun v. State, 526 So.2d 531 (Miss.1988) (circuit court *1107 erred because it refused to grant instruction that self defense may be applicable to a third party.) Also, we have acknowledged that the defense of necessity may justify escape from custody. Corley v. State, 536 So.2d 1314 (Miss.1988) (although the Court affirmed the defendant's conviction, it outlined how the defense of necessity could be applied lawfully). Moreover, the defense of necessity has been used to justify leaving the scene of an accident. Knight v. State, 601 So.2d 403 (Miss.1992). The application of the necessity defense in these cases share the finding of a reasonable belief that imminent danger of death or serious bodily harm induced the criminal conduct. These cases are distinguishable from the circumstances that led to McMillan's trespass because she had no knowledge that a specific harm was imminent to justify her unlawful action.”

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